The Nordic Journal of Human Rights has published the third issue of Volume 39. The following articles can be found in the new issue:
Articles
Human Rights During the Pandemic: COVID-19 and Securitisation of Health –Anna Gozdecka
This article analyses the response to the COVID-19 pandemic and its securitising effect on health and human rights globally. It asks whether measures taken to control the pandemic comply with the emergency provisions and limitations allowed under human rights treaties, and whether they will lead to more permanent securitisation of the health sector. It examines the impact of some pandemic control measures introduced in Western countries on human rights to answer the question of how the latter will be affected long-term.
Inclusion Through Conflict: Irregular Migrants, Bonnie Honig, and Political Rights – Karin Åberg
Irregular migrants are strongly affected by the migration policies of the state in which they reside, while also being excluded from influencing such policies. Their practical access to political freedom remains limited, as most human rights instruments recognise the state parties’ sovereign right to deport irregular migrants from their territory, and thereby from the jurisdiction which grants them human rights. The aim of this article is to situate that conflict in the sphere of political rights by examining the protection of political activities. Using Bonnie Honig’s concept of pluralistic antagonism, the author explains how the tension between universalism and particularism in human rights may affect this issue, and how it can prove useful for irregular migrants.
From ‘Margin of Discretion’ to the Principles of Universality and Non-Discrimination: A Critical Assessment of the ‘Public Morals’ Jurisprudence of the Human Rights Committee – Ignatius Yordan Nugraha
This article is intended to critically analyse the ‘public morals’ jurisprudence of the Human Rights Committee (HRC). Under the International Covenant on Civil and Political Rights, ‘protection of public morals’ can be invoked as a legitimate aim to limit various rights, such as the right to freedom of religion and freedom of expression. In this regard, the HRC has held that ‘public morals’ must be derived from many different traditions, and that limitation of rights based on public morals must be understood in light of the principles of universality of human rights and non-discrimination. However, this research has found that the HRC’s jurisprudence on public morals contains two main problems. First, it remains unclear when a moral standard can be considered as deriving from ‘many different traditions’. Second, the HRC’s interpretation is also not supported by the application of the general rule of interpretation.
Self-Restrained Adjudicator Meets (not so) Self-Restrained Lawmaker: Danish Human Rights Protection Tested on the ‘Forced Marriage Presupposition Rule’ – Nicole Stybnarova
The article examines the functioning and fragilities of the Danish system of assuring human rights compliance of legislation. The aim is to examine previous theoretical allegations about inadequacies of this system. In the context of the adoption and subsequent judicial review of the ‘forced marriage presupposition rule’ in family reunifications. Analysing four courts’ cases reviewing the presupposition rule, the article shows how the primacy of the legislature in assessing human rights combined with the judicial self-restraint apparently places the claimant in an argumentative inequality in the judicial proceedings.
The Use of Human Dignity in Legal Argumentation: An Analysis of the Case Law of the Supreme Courts of Finland – Hanna-Maria Niemi
Efforts to refer the atrocities in Syria to the permanent International Criminal Court have been in vain, highlighting the need for third states exercising extra-territorial jurisdiction. Sweden has answered the call to investigate the crimes, and the strong position afforded to victims of crime in the Swedish criminal justice system suggests that it is well-suited to provide them the justice they are entitled to. This article draws on the experiences gained in the seven trials to date in which victims have participated, to assess the extent to which international legal obligations towards the victims are implemented and were accessible to the victims.
Extraterritorial Justice: Can Swedish Trials Provide Remedies to Victims of Atrocity Crimes? – Fanny Holm
The concept of human dignity is increasingly used in legal reasoning, albeit that we still lack a clear understanding of its function in that sphere. In European countries, its use is influenced by varying national and regional European applications in courts. This article conducts a theoretically oriented empirical analysis of the case law of the two supreme courts of Finland to canvass the use of human dignity in the argumentation of these courts.
Access to Justice for Wrongful Conviction Claimants in Sweden: The Final Legal Safeguard and Levels of (In)accessibility – Sara Hellqvist
Although there is no common right to contest convictions in Europe, the prevention of miscarriages of justice plays a central part within the European legal framework and the formulation of human rights. However, little attention has been focused on directing a critical gaze at the legal path individuals are obliged to take towards possible exoneration. Drawing on legal claims relating to potentially wrongful convictions in Sweden, the aim of this article is to examine the accessibility of this remedy. The findings were studied through the lens of access-to-justice theory and illustrate the difficulties these persons have formulating a satisfactory application unless they receive legal support.
Customary Law and Limitations to Constitutional Rights in Botswana – Bonolo Ramadi Dinokopila and Bonno Kgoboge
The protection and enforcement of human rights are at the heart of any constitutional framework, which is usually inclusive of limitations aimed at securing a reasonable enjoyment of these rights for all persons. The extent to which the courts have been able to support the enjoyment of constitutional rights by, among other things, striking down laws that impose excessive limitations on such rights has become extremely important. The second chapter of Botswana’s Constitution provides for a catalogue of rights which contain inherent limitations and, in some cases, exemptions. This article provides insights into the courts’ approach in dealing with these limitations and exemptions, and their attempt to strike a balance between the enjoyment of constitutional rights and the application of customary law.
Challenges Still Facing the Domestication and Implementation of Key Provisions of Nigeria’s Child Rights Act of 2003 – Ifeoma Pamela Enemo
Children make up about 43 per cent of Nigeria’s population, and it has been pointed out that they are often described as the precious products of divine providence. Unfortunately they are subjected to all forms of abuse and neglect, such as child prostitution, trafficking and forced labour, and therefore need serious protection in society. The article employs doctrinal and content analysis of relevant literature, and recommends massive sensitisation, awareness creation, and effective adaptation of the law by every Nigerian state.
Evaluating Transformative Constitutionalism in South Africa: A View from the Mineral Rights Adjudication Looking Glass – Jackie Dugard
Against the backdrop of sustained critique of the South African Constitution, this article undertakes an empirical examination of post-apartheid transformative constitutionalism using the example of mineral rights adjudication. Focusing on a series of emblematic mineral rights cases tackling a range of transformation fault lines and interests, the article explores how the judiciary, as arbiter of transformative constitutionalism, has interpreted the transformation mandate in response to contestation by marginalised groups and interests. In doing so, the article highlights the receptiveness of the constitutional framework to increasingly disruptive transformative claims, including those that have begun to pit community struggles against more conservative government notions of transformation.
Book Reviews
Social Institutions and International Human Rights Law Implementation: Every Organ of Society, by Julie Fraser – LCHM (Linde) Verhoeven
The UN Human Rights Council. A Practical Anatomy, by Eric Tistounet – Elvira Domínguez-Redondo
The European Court of Human Rights, by Angelika Nussberger – Samira Allioui
Economic and Social Rights in a Neoliberal World, edited by Gillian MacNaughton and Diane F. Frey – Punsara Amarasinghe and Elena Vivaldi
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