Netherlands Quarterly of Human Rights

This column reflects on the continuing relevance of human rights in the 75th anniversary year of the founding of the United Nations. Despite the background circumstances, which included the catastrophe of a recent world war, ongoing colonial violence, and the dawn of the nuclear age, the new international body adopted the language and ideology of human rights as the moral foundation for the new world order. 75 years later, amidst a global pandemic, and in light of other pressing problems that include economic inequality, the return of pervasive ethno-nationalism, and the inevitable consequences of human-induced climate change, how well has this moral foundation stood the test of time?

The best interests of the child has become an central facet of the jurisprudence of the European Court of Human Rights (ECtHR) in expulsion cases. This article argues that the indirect application of the best interests of the child as an interpretive benchmark for Article 8 ECHR is not the end point of State’s responsibilities under Article 3 UN Convention on the Rights of the Child (UNCRC). This article argues that the ECtHR’s case law presents significant limitations in the subject matter scope of the best interests of the child, and limitations to the way in which it incorporates them into the Article 8 ECHR balancing exercise. This article acts as a thought experiment by modelling an alternative mode of decision-making. It asks what the best interests of the child might look like as the substantive human right at the centre of decisions about the expulsion of foreign nationals.

Given the increasing restrictions and rigorous approval procedures for the exercise of freedom of assembly in various parts of the globe, one-person pickets often remain the only available form of voicing one’s opinion. This is the case of Russia, where citizens use solo protests as an opportunity to join together: they can take turns or stand at a distance from one another, forming a ‘group one-person picket’. These realities pose an interesting question: are such group solo protests characterised as freedom of expression or assembly? Through examining the legal nature of solo protests in the practice of international human rights bodies, this article aims to reveal a deeper understanding of the two freedoms involved and the interplay between them.

National authorities are often reluctant to arrange for a forensic medical examination or to grant important weight to forensic medical reports in asylum cases. They do not (fully) accept that a forensic medical report may change their initial assessment of the credibility of the applicant’s asylum account. They may argue that a physician cannot establish the context (date, location, perpetrator) in which the alleged ill-treatment has taken place or the cause of a specific scar or medical problem of the applicant. Moreover, they may contend that the physician concerned did not have the expertise to write a forensic medical report. This article examines how the European Court of Human Rights (ECtHR) and the Committee against Torture (CAT) have included forensic medical reports in their assessment of asylum cases and how they have dealt with the ‘context’, ‘causality’ and ‘expertise’ argument. It shows that these bodies do not accept that national authorities refrain from arranging a forensic medical examination or attach no or limited weight to a forensic medical report submitted by the applicant, just because the applicant has made inconsistent, incoherent or vague statements. They also do not accept general references to the ‘context’, ‘causality’ and ‘expertise’ argument. However, they have accepted these arguments in some individual cases, often without clear reasoning. The article concludes that the ECtHR and CAT could provide more guidance to national authorities concerning the role of forensic medical reports in asylum cases by explicitly weighing the seriousness of the credibility issues against the forensic medical report and by paying attention to the requirements for forensic medical reports laid down in the Istanbul Protocol.