Integrating Human Rights? Socio-Economic Rights and Budget Analysis

This article explores an opportunity for mutual learning between the fields of human rights law and economic analysis. Specifically it considers how economic techniques might be used to appraise public expenditure in line with international obligations arising from the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR). Our argument is that such tools do have the potential to contribute to this aim, but that embedding them within government budget processes through “human rights mainstreaming” may prove problematic in practice. We therefore suggest, as part of a broader strategy which includes judicial enforcement, that mainstreaming initiatives and budget analysis can be useful as complementary tools for the full realisation of all human rights.

Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources

Human rights based budget analysis projects have emerged at a time when the United Nations has asserted the indivisibility of all human rights and attention is increasingly focused on the role of non-judicial bodies in promoting and protecting human rights. This book seeks to develop the human rights framework for such budget analyses, by exploring the international law obligations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in relation to budgetary processes. The book outlines international experiences and comparative practice in relation to economic and social rights budget analysis and budgeting.

The book sets out an ICESCR-based methodology for analysing budget and resource allocations and focuses on the legal obligation imposed on state parties by article 2(1) of ICESCR to progressively realise economic and social rights to 'the maximum of available resources'. Taking Northern Ireland as a key case study, the book demonstrates and promotes the use of a ‘rights-based’ approach in budgetary decision-making.

The book will be relevant to a global audience currently considering how to engage in the budget process from a human rights perspective. It will be of interest to students and researchers of international human rights law and public law, as well as economic and social rights advocacy and lobbying groups.

Courts and Consociations: Human Rights versus Power-sharing

Consociations are power-sharing arrangements, increasingly used to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts. Current examples include Belgium, Bosnia, Northern Ireland, Burundi, and Iraq. Despite their growing popularity, they have begun to be challenged before human rights courts as being incompatible with human rights norms, particularly equality and non-discrimination.

Courts and Consociations examines the use of power-sharing agreements, their legitimacy, and their compatibility with human rights law. Key questions include to what extent, if any, consociations conflict with the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements.

In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and then in Sejdic and Finci v Bosnia regarding the constitution established for Bosnia Herzegovina under the Dayton Agreement. The Court's decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in Belgium. This book accounts for this change and assess its implications. The problematic aspects of the current state of law are demonstrated. Future negotiators in places riven by potential or actual bloody ethnic conflicts may now have less flexibility in reaching a workable settlement, which may unintentionally contribute to sustaining such conflicts and make it more likely that negotiators will consider excluding regional and international courts from reviewing these political settlements.

Taking as Giving, Appropriation as Access: Transfers of Land Development Rights and China’s Recent Experiments

Economic development at both the domestic and global levels is associated with increasing tensions which are inextricably linked to the meaning and allocation of property rights, which has a great impact on appropriation of resources and may lead to different paths of development. “Taking”-- the appropriation of private land for public needs -- is a typical example that exhibits those tensions, posing a challenge to the conventional conception of property as individualistic and exclusive rights of possession, use, and disposition and to the associated neoliberal model of development. Should the individual landowner be left to bear the cost of a regulatory intervention which endures to the wider benefit of the whole community? How to mitigate the tensions between private ownership and public regulation? If we take the liberal concept of property, then private property seems to be in constant conflict with public interests and wider social concerns. Meanwhile, community, situating between the state and the individuals, and community’s relationship to development rights, have not provoked enough discussion. The paper explores the different ways land development rights might be seen both in Western, essentially common law systems, and in China, especially now and in view of two case studies. An empirical example in Wugang, China reveals the importance of integrating the “community lens” proposed by Roger Cotterrell into studies of the transfer of land development rights. Reading through the community lens, taking could be giving and appropriation could also be access. This approach provides a new perspective to re-evaluate the relationship between legal appropriation and development.

Reconciling Children's Policy and Children's Rights: Barriers to Effective Government Delivery

Countries which have ratified the United Nations Convention on the Rights of the Child, have committed to implementing its principles in law and policy. This article explores the challenges for securing children's rights through policy, drawing on a research project conducted for the Northern Ireland Commissioner for Children and Young People, which sought to identify barriers to effective government delivery for children and young people from the perspective of key stakeholders. The research concluded that, while some barriers (such as delay and availability of data) are not child-specific, they can be accentuated when children and young people are the main focus of policy development and more so when seeking to adopt a child rights-compliant approach to policy development and implementation. 

Labour Law as Human Rights Law: A Critique of the Use of ‘Dignity’ by Freedland and Kountouris

In their recent book, The Legal Construction of Personal Work Relations, Mark Freedland and Nicola Kountouris present an ambitious study of the personal scope of (what they would not want to call) ‘employment’ law. The book does this within a broader argument that calls for the reconceptualization of labour law as a whole, and it is this broader argument on which I shall focus in this chapter. Their aim, in urging us to see labour law through the lens of ‘dignity’ is to bring labour law and human rights law into closer alignment than has sometimes been the case in the past. Increasingly, dignity is seen as providing a, sometimes the, foundation of human rights law, particularly in Europe. I shall suggest that whilst the aim of constructing a new set of foundations for labour law is a worthy and increasingly urgent task, the concepts on which Freedland and Kountouris seek to build their project pose significant difficulties. In particular, their espousal of ‘dignity’ presents problems that must be addressed if their reconceptualization is not to prove a blind alley.

Using Comparative Reasoning in Human Rights Adjudication:The Court of Justice of the European Union and the European Court of Human Rights Compared

This article examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

Childhood, Rights and Justice in Northern Ireland

Building on primary research and previous publications (Haydon, 2012; Haydon, 2014; Haydon and Scraton, 2008; McAlister, Scraton and Haydon, 2009; Scraton and Haydon, 2002), this chapter will provide a critical analysis of children’s rights and youth justice in Northern Ireland. More broadly, it will consider recent research concerning the criminalisation of children and young people in the United Kingdom and profound concerns regarding the policing and regulation of children raised in successive concluding observations about the UK Government’s implementation of the UN Convention on the Rights of the Child (UN Committee on the Rights of the Child, 1995, 2002, 2008). From this generic context, the chapter will map the ‘particular circumstances’ of Northern Ireland - a discrete legal jurisdiction to which powers for justice and policing were devolved only in 2010. Emerging from four decades of conflict and progressing through an uneasy ‘peace’, rights-based institutions and enabling legislation have, in principle, promoted and protected human rights. Yet children and young people living in communities marginalised by poverty and the legacy of conflict continue to experience inconsistent formal regulation by the police and the criminal justice system, while enduring often brutal informal regulation by paramilitaries. The chapter will explore evident tensions between the dynamics of criminalisation and promotion/ protection of children’s rights in a society transitioning from conflict. Further, it will analyse the challenges to securing children’s rights principles and provisions within a hostile political and ideological context, arguing for a critical rights-based agenda that promotes social justice through rights compliance together with policies and practices that address the structural inequalities faced by children and young people.

A “Child’s Rights Perspective”: The “Right” of Children and Young People to Participate in Health Care Research

As all human beings are consumers of health care provision across the life span and in receipt of care delivered by accountable health care professionals, all should have the right to be involved in shaping the future of their own health care. Rights-based participation, when applied successfully, has the potential to inform and influence the delivery of child health care, the child’s experience of health care, plus children’s nursing education (Coyne & Gallagher, 2011). The “right” of every child and young person to participate in research that relates to their own health care is also sustained by the author’s lead position as a Senior Lecturer in Higher Education for pre-registration children’s nursing in Northern Ireland and the appreciation of their voice when practicing as a registered children’s nurse and ward sister. The report provides an insight into seminal work on human and child rights; the historical context of children in Western society, and the evolution of children’s nursing amid the child’s right to participate in shaping their own health care.

(Re)examining the relationship between children's subjective wellbeing and their perceptions of participation rights

In recent years wellbeing has been linked increasingly with children’s rights, often characterised as central to their realisation. Indeed it has been suggested that the two concepts are so intertwined that their pairing has become something of a mantra in the literature on childhood. This paper seeks to explore the nature of the relationship between wellbeing and participation rights, using a recently developed ‘rights-based’ measure of children’s participation in school and community, the Children’s Participation Rights Questionnaire (CPRQ), and an established measure of subjective wellbeing – KIDSCREEN-10. The data for the study came from the Kids’ Life and Times (KLT) which is an annual online survey of Primary 7 children carried out in Northern Ireland. In 2013 approximately 3,800 children (51% girls; 49% boys) from 212 schools participated in KLT. The findings showed a statistically significant positive correlation between children’s overall scores on the KIDSCREEN-10 subjective wellbeing measure and their perceptions that their participation rights are respected in school and community settings. Further, the results indicated that it is the social relations/autonomy questions on KIDSCREEN-10 which are most strongly related to children’s perceptions that their participation rights are respected. Exploration of the findings by gender showed that there were no significant differences in overall wellbeing; however girls had higher scores than boys on the social relations/autonomy domain of KIDSCREEN-10. Girls were also more positive than boys about their participation in school and community. In light of the findings from this study, it is suggested that what lies at the heart of the relationship between child wellbeing and children’s participation rights is the social/relational aspects of both participation and wellbeing.

Paramountcy, family rights and contested adoption: does contact with birth relatives balance the scales?

This article combines practitioner insight and research evidence to chart how principles of partnership and paramountcy have led to birth family contact becoming the expected norm following contested adoption from care in Northern Ireland. The article highlights how practice has adapted to the delay in proposed reforms to adoption legislation resulting in the evolution of increasingly open adoption practices. Adoption represents an irrevocable transfer of parental responsibility from birth to adoptive parents and achieves permanence and legal security for children in care who cannot return to their birth family. Its enduring effect, however, makes public adoption a contentious field of child welfare practice, particularly when contested by birth parents. This article explores how post-adoption contact may be viewed as reconciling the uneasy interface between paramountcy principles and parental rights to respect for family life. The article highlights the complexity of adoptive kinship relationships following contested adoption from care, and how contact presents unique challenges that mitigate against meaningful and sustainable connections between the child and their birth relatives. In conclusion, a call is made for sensitive negotiation and support of contact arrangements, and the development of practice models that are informed by an understanding of the workings of adoptive kinship.

The human rights dilemma : an east-west encounter : Germany and China in 1996 /

Conflicts over human rights in relations between East Asia and the West have increased since the end of the Cold War. Western governments express concern about human rights standards in East Asian countries. In the East, these expressions have been perceived as interference in internal affairs. Due to dramatic economic development, East Asian nations recently have gained in pride and self-confidence as global actors. Such development is observed with suspicion in the West. Concerned about the decline of global U.S. influence, some American scholars have re-invented the notion of "culture" to point at an alleged East Asian threat. Also East Asian statesmen use the cultural argument by claiming the existence of so-called 'Asian values', which they allege are the key to Eastern economic success. This thesis argues that issues of human rights in East-West relations are not only a consequence of well-intended concern by Western governments regarding the human rights and welfare of the citizens of East Asian nations, but are in fact dominated by and used as a pawn in interplay with more complicated questions of global power and economic relations between East and West. The thesis reviews the relevance of culture in East-West relations. In the West, particularly Samuel P. Huntington with his prediction of the Clash of Civilizations stands out. Singapore's Lee Kuan Yew has been very vocal on the Eastern side. Whereas the West tries to cope with its decrease of global influence, after hundreds of years under Western hegemonism, the East believes in an Asian way of development without interference form the West. Most of this dispute revolves around the issue of human rights. The West claims the universality of rights which in fact emphasizes political and civil rights. Western countries critizise poor human rights standards in East Asia. The East, in return, accuses the West of hypocritical policies that seek global dominance. East Asian governments assert that due to a different stage of development they have to stress first their rights to development in order to assure stability. In particular, China argues this way. The country's leadership, however, shows concern about human rights and has already improved its human rights record over the past years. This thesis analyses the dispute over human rights in a case study on Germany and China. Both countries have a mutual interest in trade relations which has conflicted with Germany's criticism of China's problematic human rights record. In 1996, the two countries clashed after the German parliament passed a resolution condemning China's treatment of Tibet. This caused a lot of damage to the Chinese-German relationship which in the course of the year went back to normality. In the light of these frictions a German human rights policy that focuses on unspectacular grass-roots support of China, for example in strengthening China's legal system, would be preferable. Such co-operation must be based on mutual respect.