Featured Journal Content – Human Rights :: Collective Legal Capacity; Non-Refoulment Principle :: Non-national Social/Cultural Rights

International Human Rights Law Review
Volume 9 (2020): Issue 2 (Oct 2020)

Connecting the Right of Collective Legal Capacity by Indigenous Peoples with the Right of Individual Legal Capacity by Persons with Disabilities
By: Matthew S Smith and Michael Ashley Stein
Pages: 147–183
Publication Date: 24 Oct 2020
This Article explores the juridical implications of indigenous peoples’ right to legal capacity in the Inter-American system for cases involving the same right of persons with disabilities within that system and beyond. It explicates the Inter-American Court of Human Rights’ (IACtHR) three-factor test in Saramaka People v Suriname and analogizes its reasoning with rationales underpinning the right to legal capacity under the United Nations Convention on the Rights of Persons with Disabilities (crpd). It then demonstrates how the IACtHR can apply a Saramaka-style test to future cases brought by persons with disabilities challenging legal capacity restrictions. The Article further argues that the European Court of Human Rights (ECtHR) should also apply this rule to align its legal capacity jurisprudence with the crpd’s mandates. Finally, it suggests that the Committee on the Rights of Persons with Disabilities (crpd Committee) ought to consider this rule when resolving individual communications and thereby guide courts.

Non-refoulement Principle and Its Application to Refugees and Asylum Seekers Who Have Committed Offences in Africa
By: Jamil Ddamulira Mujuzi
Pages: 213–251
Publication Date: 24 Oct 2020
The 1951 Convention Relating to the Status of Refugees and the 1969 African Union Convention Governing the Specific Aspects of Refugee Problems in Africa have been ratified by many African States. These treaties deal with, inter alia, the principle of non-refoulement generally and the protection of asylum seekers or refugees convicted of offences. Some States in Eastern and Southern Africa have also enacted domestic legislation giving effect to these treaties and the principle of non-refoulement is provided for in most of these pieces of legislation, albeit sometimes in different ways. This article assesses legislation and case law from Eastern and Southern African States to demonstrate how courts have dealt with the principle of non-refoulement in the context of refugees and/or asylum seekers who have been convicted of offences. It also considers relevant legislation and case law prohibiting extradition if there are grounds to believe that the extradited person could be subjected to torture in a receiving State.

The Protection of Non-nationals’ Economic, Social and Cultural Rights in un Human Rights Treaties
By: Claire Lougarre
Pages: 252–290
Publication Date: 24 Oct 2020
The decade of austerity policies resulting from the 2008 economic crisis significantly impeded the realisation of economic, social and cultural (esc) rights worldwide, especially for non-nationals who became targets of populist nationalist ideologies. The Coronavirus disease (covid-19) pandemic and its subsequent recession have heightened existing levels of inequalities, putting non-nationals’ access to health, housing, food, water and work under unprecedented strains. It is thus, crucial to analyse the extent to which un human rights treaties recognise non-nationals’ esc rights, in order to assess their ability to offer protection in this context. This article sheds light on the ambiguities of key un human rights treaties in this regard. It then analyses the attempts of relevant un treaty bodies to circumvent such issues; and finally suggests legal paths allowing un treaty bodies to further assert their protection of non-nationals’ esc rights during the covid-19 pandemic.