Browsing by Subject "positive obligations"

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  • Heikkilä, Mikaela; Katsui, Hisayo; Mustaniemi-Laakso, Maija (2020)
    Universal human rights of all are complemented with particular, targeted protection of some, especially those that traditionally have been left behind. By juxtaposing the ideas of universality and particularity, the article studies vulnerability as a particularising tool within human rights with a comparative approach to the influential vulnerability theory by Martha Fineman. By outlining the similarities and the differences between the two approaches of vulnerability theory and human rights project, the article sheds light on how the particular protection needs of persons with disabilities play out in the universalistic logic of vulnerability. The article argues that both universal and particular obligations of responsive states – and responsive humans – are needed as a way of materialising substantive equality for persons with disabilities as vulnerable legal subjects. Such obligations cannot be codified in full detail, but the intrinsic essence of rights requires each right to be interpreted in context and with regard to the particular individual vulnerabilities and resilience of each person. In operationalising the obligations arising from such rights, the human rights project and the vulnerability theory complement and reinforce each other in terms of specifying the rationale and the detailed benchmarks for state action.
  • Heinänen, Saku (Helsingin yliopisto, 2021)
    The thesis is a study of the communicated case ‘S.S. and the Others v. Italy’ (application no. 21660/80) of the European Court of Human Rights (ECtHR). The application is on behalf of the victims of an incident in which a migrant boat found itself in distress after having left Libya for Europe. The Libyan Coast Guard failed to rescue all of the migrants and allegedly acted negligently, mistreating those they took onboard, and returned them to Libya, exposing them to continued ill-treatment and some of them also to forced return (refoulement) to their countries of origin. Italy is a State Party to the European Convention on Human Rights (ECHR), and has a bilateral agreement, ‘Memorandum of Understanding’ (MoU), with Libya (a non-ECHR State). On the basis of the MoU, Italy funds and equips the Libyan Coast Guard. The agreement can be seen as a means to ‘outsource’ border control and to instruct Libya to intercept migrants before they reach Italy and the European Union (EU), thus effectively circumventing the obligations of the ECHR. The research question is in two parts. First, I ask whether Italy had extraterritorial jurisdiction as stated in Article 1 ECHR, and second, if it had, has Italy violated its positive obligations to secure the applicants’ rights. Jurisdiction is a ‘threshold criterium’ for the Court to study the merits of an application. As for the violations, the thesis focuses on Article 2 (right to life) and Article 3 (prohibition of torture; includes also the prohibition of forced return, or refoulement). The methodology is doctrinal in that the thesis aims to examine critically the central features of the relevant legislation and case law in order to create an arguably correct and sufficiently complete statement on the Court’s reasoning and outcome. The main sources are the provisions of the ECHR itself and the relevant previous case law of the Court, together with a literature review. Additionally, there are third-party interveners’ statements and a video reconstruction of the events. The Court’s questions and information requests to the parties, as attached to the application, are used as a starting point. Besides a hypothesis of the argumentation and the decision of the Court, some estimations are made about what could be the consequences of the decision to such bilateral pacts as the MoU between Italy and Libya, and, in general, to ‘deals’ between the EU Member States and third or transit countries. Finally, the thesis reflects on the eventual repercussions on the topical issue of the EU Commission’s 23.9.2020 proposal for the New Pact on Migration and Asylum, which appears to encourage the Member States to maintain and develop outsourcing practices.