International human rights law

One of NZ’s most contentious climate cases is moving forward. And the world is watching

Retrieved on: 
Monday, February 12, 2024

The Supreme Court overturned lower court rulings which had struck out Smith’s ambitious claim seeking to establish civil (tort) liability for those emitters’ contributions to climate change.

Key Points: 
  • The Supreme Court overturned lower court rulings which had struck out Smith’s ambitious claim seeking to establish civil (tort) liability for those emitters’ contributions to climate change.
  • With the Supreme Court decision, Smith has won the right to present his full case before the High Court.

The case against the corporate emitters

  • Smith argued the activities and effects of the corporate defendants amount to three forms of “tort” or civil wrong: public nuisance, negligence, and a new form of civil wrong described as a “proposed climate system damage tort”.
  • Read more:
    Children's climate change case at the European Court of Human Rights: what's at stake?
  • The first two causes of action – public nuisance and negligence – have long lineages in the common law.
  • A key plank of the corporate emitters’ argument was that the courts “are ill-suited to deal with a systemic problem of this nature with all the complexity entailed”.

The challenges of establishing causation

  • Questions of causation and proximity have been stumbling blocks for litigants overseas attempting to bring similar tort claims to Smith’s.
  • In this case, the seven corporate emitters are associated with around 30% of total New Zealand emissions.
  • The court suggested that there may be scope for adjusting the causation rules to better reflect the nature of modern environmental issues like climate change.

What role for tikanga and where now?

  • Recent Supreme Court decisions have accepted and applied tikanga as the “first law of New Zealand” including in relation to environmental protection.
  • The Court followed that approach in this case, accepting that crucial aspects of Smith’s case rely on tikanga principles.
  • The court pronounced that “addressing and assessing matters of tikanga simply cannot be avoided”.


Vernon Rive has previously received funding from the New Zealand Law Foundation.

Surveillance and the state: South Africa’s proposed new spying law is open for comment – an expert points out its flaws

Retrieved on: 
Tuesday, February 6, 2024

Bulk interception involves the surveillance of electronic signals, including communication signals and internet traffic, on a very large scale, and often on an untargeted basis.

Key Points: 
  • Bulk interception involves the surveillance of electronic signals, including communication signals and internet traffic, on a very large scale, and often on an untargeted basis.
  • If intelligence agents misuse this capability, it can have a massive, negative impact on the privacy of innocent people.
  • The court found that there was no law authorising the practice of bulk surveillance and limiting its potential abuse.

The dangers

  • This is regardless of whether they are suspected of serious crimes or threats to national security.
  • Their intention is to obtain strategic intelligence about longer term external threats to a country’s security, and that may be difficult to obtain by other means.
  • The court rejected this argument because the act failed to address the regulation of bulk interception directly.

What the Constitutional Court said

  • The 2021 Constitutional Court judgment did not address whether bulk interception should ever be acceptable as a surveillance practice.
  • The court indicated that it would want to see a law authorising bulk surveillance that sets out “the nuts and bolts of the Centre’s functions”.
  • The court would also be looking for detail on
    how these various types of intelligence must be captured, copied, stored, or distributed.

What the amendment bill says

  • The amendment bill provides for the proper establishment of the National Communication Centre and its functions.
  • A parliamentary ad hoc committee has set a deadline of 15 February 2024 for public comment.
  • The fact that the judge would be an executive appointment also raises doubts about his or her independence.

Inadequate benchmarking

  • These require that a domestic legal framework provide what the European Court of Human Rights has referred to as “end-to-end” safeguards covering all stages of bulk interception.
  • How to restore its credibility

    The European Court has stated that a domestic legal framework should define


the grounds on which bulk interception may be authorised
the circumstances
the procedures to be followed for granting authorisation
procedures for selecting, examining and using material obtained from intercepts
The framework should also set out
the precautions to be taken when communicating the material to other parties
limits on the duration of interception
procedures for the storage of intercepted material
the circumstances in which such material must be erased and destroyed
supervision procedures by an independent authority
compliance procedures for review of surveillance once it has been completed.

  • Incorporating these details in regulations would not be adequate on its own, as the bill gives the intelligence minister too much power to set the ground rules for bulk interception.
  • These rules are also unlikely to be subjected to the same level of public scrutiny as the bill.


Jane Duncan receives funding from the British Academy and is a director of the non-governmental organisation Intelwatch.

Domestic violence: criminalising coercive control in France could bring more justice to victims

Retrieved on: 
Wednesday, January 17, 2024

Over the last decade in many European countries, legislators, magistrates, government ministers, law enforcement agencies, lawyers and service providers have recognised that prevailing approaches to domestic violence were failing and have adopted the new model of “coercive control” to reframe domestic violence as a crime against rights and resources rather than as an assault.Criminalising coercive controlDrawing on interviews with several hundred French professionals, victims, service providers and academics, the Chandler-Vérien French parliamentary mission on domestic violence tasked by Prime Minister Borne with improving the judicial treatment of domestic violence stressed the urgency of translating coercive control into law and called on coercive control to be at the core of future information campaigns and professional training.

Key Points: 


Over the last decade in many European countries, legislators, magistrates, government ministers, law enforcement agencies, lawyers and service providers have recognised that prevailing approaches to domestic violence were failing and have adopted the new model of “coercive control” to reframe domestic violence as a crime against rights and resources rather than as an assault.

Criminalising coercive control

  • Drawing on interviews with several hundred French professionals, victims, service providers and academics, the Chandler-Vérien French parliamentary mission on domestic violence tasked by Prime Minister Borne with improving the judicial treatment of domestic violence stressed the urgency of translating coercive control into law and called on coercive control to be at the core of future information campaigns and professional training.
  • We believe that enacting a coercive control offence in France would be a significant advance in the equality agenda.

Coercive control: a “liberty crime”

  • Coercive control has been referred to as a “liberty crime” because of the experience of entrapment it produces, analogous to being held hostage.
  • The rights infringed upon include autonomy, dignity and self-determination, even more so when victims have a disability.


current domestic-violence laws have failed to hold perpetrators accountable and to protect victims, mainly women and children;
the lack of social control and legal sanctions encourages aggravation and recidivism, creating a revolving door in French courts and prisons;
victims confront situations that more closely resemble captivity than an assault.

A system of impunity

  • The French state’s High Council for Equality has found that the conviction rate for perpetrators of domestic violence amounted to a “true system of impunity”.
  • The gap between the current criminalisation of domestic violence and its reality as experienced by victims can erode trust in the justice system.
  • The conviction rate of perpetrators and the number of domestic homicides in France reflect the perpetrators’ lack of accountability.

Surveillance, isolation, intimidation, control, personalised credible threats

  • In most cases, violence and/or sexual abuse is accompanied by intimidation, isolation, control tactics, and personalised credible threats.
  • These begin in the house and can extend to every activity, including work, and involve children, other family members and unrelated others, including professionals, as spies, informants or co-victims.
  • Because perpetrators aim to monopolise all the resources and privileges available in a relationship or family space, their adult partner is usually their primary target.
  • But any person who is seen as obstructing this monopoly is likely to be targeted as a secondary victim, including children, grandparents, siblings, friends, neighbours, coworkers, as well as law and social services professionals.

What about the children?

  • Coercive control of women by men is the most important cause of violence against children and child homicide outside war zones.
  • This often occurs after a separation, in the context of legal proceedings relating to the child’s custody and parental rights or during visiting rights.


The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

Adult Survivors Act Revives City Law Claims, Court Rules in Lawsuit Filed by Survivors Law Project

Retrieved on: 
Thursday, December 21, 2023

It is the first-ever ruling to explicitly state that the ASA revives claims under both state law and city law.

Key Points: 
  • It is the first-ever ruling to explicitly state that the ASA revives claims under both state law and city law.
  • It is the first-ever ruling to explicitly state that the ASA revives claims under both state law and city law.
  • Statement from Julia Elmaleh-Sachs, Senior Associate at Survivors Law Project:
    "We are thrilled with the Court's well-reasoned decision that the Adult Survivors Act revives claims under the NYCHRL—the first ruling of its kind.
  • We urge the New York State legislature to move quickly on extending the ASA so these survivors can have their day in court, too."

Portuguese youths sue 33 European governments at EU court in largest climate case ever

Retrieved on: 
Wednesday, September 27, 2023

A little over three years ago, a group of Portuguese youths filed a legal action against 33 European governments to the European Court of Human Rights (ECHR) over what they say is a failure to adequately tackle global heating.

Key Points: 
  • A little over three years ago, a group of Portuguese youths filed a legal action against 33 European governments to the European Court of Human Rights (ECHR) over what they say is a failure to adequately tackle global heating.
  • Now, the Strasbourg court will be hearing them on 27 September, in a novel, far-fetching bid to arm-twist them into taking climate action.

The claim

    • Plaintiffs expressed their grave concern over governments’ insufficient efforts to limit global warming to 2°C above pre-industrial levels.
    • Were the rest of the world to mirror their commitments, the global temperature would hike by 2 to 3°C, according to Climate Tracker.

Human rights to the rescue of climate justice

    • Against a global backdrop of increasing climate litigation, the Duarte Agostinho application follows in the steps of other climate lawsuits to draw a clear link between human rights violations and climate change.
    • The first to have blazed that trail in 2015 was the Urgenda Foundation, whose legal action compelled the government to cut emissions by 25% from 1990 levels on the grounds of its applicants’ human rights.
    • They also claim to suffer from anxiety after wildfires in Portugal in 2017 killed more than 120 people.
    • In the absence of a specific article on environmental protection, these articles are essential tools for protecting people against various forms of pollution and other nuisances.
    • The youths also argue that governments, in failing to take bold climate action, have breached Article 14, which guarantees the right not to suffer discrimination in the “enjoyment of the rights and freedoms set forth in this convention,” with the view that climate change impacts their generation in particular.

Ushering in effective action

    • To prevent this from happening again, young people will be banking on a range of principles from human rights, including that of effectiveness.
    • According to this postulate, states cannot remain passive in the face of a violation of the rights of individuals.
    • For the court, this principle originally offered a guarantee that states would implement the positive obligations of protection required by the convention.
    • The latter orders parties to take action to prevent a provision from being violated, even in a context of uncertainty.

The European court’s climate challenge

    • Because the ruling is set to be issued by the Grand Chamber, there will no possibility of appealing against it.
    • The question of its impact on the continent’s climate justice also remains to be seen.
    • However, it could sharpen states’ resolve in climate and human rights’ matters.

Portuguese youths sue 32 European governments at EU court in largest climate case ever

Retrieved on: 
Wednesday, September 27, 2023

A little over three years ago, a group of Portuguese youths filed a legal action against 32 European governments to the European Court of Human Rights (ECHR) over what they say is a failure to adequately tackle global heating.

Key Points: 
  • A little over three years ago, a group of Portuguese youths filed a legal action against 32 European governments to the European Court of Human Rights (ECHR) over what they say is a failure to adequately tackle global heating.
  • Now, the Strasbourg court will be hearing them on 27 September, in a novel, far-fetching bid to arm-twist them into taking climate action.

The claim

    • Plaintiffs expressed their grave concern over governments’ insufficient efforts to limit global warming to 2°C above pre-industrial levels.
    • Were the rest of the world to mirror their commitments, the global temperature would hike by 2 to 3C, according to Climate Tracker.

Human rights to the rescue of climate justice

    • Against a global backdrop of increasing climate litigation, the Duarte Agostinho application follows in the steps of other climate lawsuits to draw a clear link between human rights violations and climate change.
    • The first to have blazed that trail was the Urgenda Foundation in 2015, whose legal action compelled the government to cut emissions by 25% from 1990 levels on the grounds of its applicants’ human rights.
    • They also claim to suffer from anxiety after wildfires in Portugal in 2017 killed more than 120 people.
    • Governments, they argue, have failed to comply with their positive obligations under Articles 2 of the European Convention on Human Rights (Right to life):
      “Everyone’s right to life shall be protected by law.

Ushering in effective action

    • To prevent this from happening again, young people will be banking on a range of principles from human rights, including that of effectiveness.
    • According to this postulate, states cannot remain passive in the face of a violation of the rights of individuals.
    • For the Court, this principle originally offered a guarantee that states would implement the positive obligations of protection required by the Convention.
    • The latter orders parties to take action to prevent a provision from being violated, even in a context of uncertainty.

The European Court’s climate challenge

    • The ECHR takes on average two years to reach a decision, though this period may vary depending on the complexity of the case.
    • The question of the verdict’s impact on the continent’s climate justice also remains to be seen.
    • However, it could sharpen States’ obligations in climate matters and respect for human rights.

Quran burning in Sweden prompts debate on the fine line between freedom of expression and incitement of hatred

Retrieved on: 
Tuesday, August 29, 2023

The spate of Quran-burning incidents followed an act of desecration by far-right activist Rasmus Paludan on Jan. 21, 2023, in front of the Turkish embassy in Stockholm.

Key Points: 
  • The spate of Quran-burning incidents followed an act of desecration by far-right activist Rasmus Paludan on Jan. 21, 2023, in front of the Turkish embassy in Stockholm.
  • On Aug. 25, Denmark’s government said it would “criminalize” desecration of religious objects and moved a bill banning the burning of scriptures.
  • As a scholar of European studies, I’m interested in how modern European societies are trying to navigate the fine line between freedom of expression and the need to prevent incitement of hatred; a few are introducing laws specifically addressing hate speech.

Death penalty for insulting God and church

    • For instance, the Danish Code from 1683 punished people by cutting off their tongue, head or hands.
    • In 1636, English Puritan settlers in Massachusetts instituted the penalty of death for blasphemy.
    • Advocating for a strict separation of church and state, France became the first country to repeal its blasphemy law in 1881.

European landscape of blasphemy laws

    • Several countries in Europe retain blasphemy laws, but their approaches are highly varied.
    • Often the laws may not prevent present-day acts like dishonoring of religious texts.
    • Austria and Switzerland have laws quite similar to Germany’s in this regard.
    • This case later went up to the European Court of Human Rights, which supported the Viennese court’s decision.

Contemporary debate

    • A few countries are introducing new legislation to curb hate speech against religious communities.
    • Sweden passed a hate speech law in 1970 protecting racial, ethnic, religious and sexual minorities.
    • Because of the existing hate speech law focusing on incitement against minorities rather than religions, the activist received a fine from the police.

A global challenge

    • Even in the U.S., there’s an ongoing debate about the boundaries of free speech.
    • The First Amendment of the Constitution allows free speech, which some can interpret as the right to burn holy books.
    • Scholar of law and religion Jane Wise suggested that the U.S. could follow the English example by banning hate speech.
    • As societies change, I believe it has become important to recognize when freedom of speech has turned into promoting hatred.

The Center for Truth and Justice Welcomes Report by Genocide Advisor Juan Mendez that Could Mobilize Nations to Prevent a Genocide in Nagorno-Karabakh

Retrieved on: 
Thursday, August 24, 2023

The Center for Truth and Justice welcomes the report and notes that the world's states now have ample evidence of the need to take action to end the blockade.

Key Points: 
  • The Center for Truth and Justice welcomes the report and notes that the world's states now have ample evidence of the need to take action to end the blockade.
  • "I focus my analysis in the prevention duty of the international community."
  • The report , which was requested by Armenia and was circulated immediately at the United Nations, was posted by Mendez on his Facebook page .
  • The UN Security Council is weighing a series of appeals from prominent quarters to compel an end to the blockade.

Sending UK asylum seekers to Ascension Island is a legal non-starter – if the government really is planning to do it

Retrieved on: 
Wednesday, August 9, 2023

This idea was originally mooted in 2021 and dropped on the grounds that it was unworkable.

Key Points: 
  • This idea was originally mooted in 2021 and dropped on the grounds that it was unworkable.
  • Last year, the European Court of Human Rights (ECHR) in Strasbourg blocked the UK government from sending asylum seekers to Rwanda – although it hasn’t yet delivered a final ruling on the matter.
  • British courts also ruled it unsafe to send asylum seekers there, a decision that the government is appealing at the Supreme Court.

What’s the difference between sending people to Rwanda and Ascension Island?


    The main difference between sending people to Rwanda and Ascension Island is that the latter is a British overseas territory. A key point in legal terms is that anyone on Ascension Island has the right to submit complaints directly to the ECHR about their treatment. In other words, if someone is tortured on Ascension Island they can complain to the ECHR about it. If they are tortured in Rwanda, they can’t.

Can the ECHR block removals to Ascension Island?

    • It would be unusual but not impossible for the ECHR to prevent a country from moving people from one part to another.
    • The ECHR can prevent transfer from within the state if it decides that such transfer would cause immediate harm.
    • This example is particularly pertinent since it appears there isn’t even a hospital on Ascension Island.
    • It’s unclear if people sent to Ascension Island would have access to the internet or phones but communication is evidently an inherent challenge in such an isolated place.

Is this plan really going to go ahead?

    • The stated aim of the Rwanda policy was to deter people from using illegal ways of getting to the UK.
    • According to this line of thinking, for Ascension Island to act as a deterrent, the conditions there would have to be bad.
    • Clearly, removal to Ascension Island can hardly achieve this latter aim because the protection of the convention spreads to this island.

A rocky diplomatic road: Julian Assange's hopes of avoiding extradition take a blow as US pushes back

Retrieved on: 
Thursday, August 3, 2023

WikiLeaks founder Julian Assange’s hopes of avoiding extradition to the United States, where he’s charged with espionage and computer misuse offences, have taken a blow.

Key Points: 
  • WikiLeaks founder Julian Assange’s hopes of avoiding extradition to the United States, where he’s charged with espionage and computer misuse offences, have taken a blow.
  • From a diplomatic perspective, moving from silence or ambiguity to clearer opposition to the Australian government’s position suggests the US may have decided to prosecute Assange despite Australia’s objections.
  • He regards the diplomatic process as ongoing – though none can doubt it’s now more challenging.

How’d we get here?

    • In parallel, Assange has challenged the order before the European Court of Human Rights.
    • However, his best chance for freedom is for the US to withdraw the prosecution, or to pardon him.
    • Under former president Barack Obama, the US declined to prosecute Assange because his case could open the door to prosecution of journalists for espionage.
    • The Trump administration issued an indictment against Assange in 2019, and the Biden administration has continued the extradition process.

What if the government’s efforts fail?

    • In 2022, Australian pressure led to the return of Professor Sean Turnell from Myanmar, where he had been charged with national security offences.
    • Australia, working with the UK, secured the release of British-Australian academic Kylie Moore-Gilbert from Iran in November 2020.
    • This was a more challenging diplomatic situation because of the less friendly relations between Iran and both the UK and Australia.
    • While Albanese has said Australia will continue to make representations concerning Assange, the diplomatic road has become rockier.