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Holning Lau


Laws concerning sexual orientation and gender identity (SOGI) have undergone a sea change. Still, legal protections against SOGI discrimination vary widely around the world. As jurisdictions wrestle with whether and how to protect people against SOGI discrimination, several conceptual questions emerge. This Brill volume reviews and discusses legal developments and scholarly commentary concerning these questions. Specifically, this volume examines the following five questions: (1) Is SOGI discrimination encompassed by existing laws prohibiting discrimination based on sex? (2) Should sexual orientation and gender identity be considered protected categories in and of themselves? (3) Is there a standard sequence of steps for developing legal protections against SOGI discrimination? (4) What are the drawbacks of developing SOGI discrimination protections? (5) To what extent should religious objections justify exemptions from SOGI discrimination bans?

Responding to Human Rights Violations in Africa

Assessing the Role of the African Commission and Court on Human and Peoples’ Rights (1987–2018)

Manisuli Ssenyonjo

This article examines the main achievements and challenges of Africa’s two regional bodies established to ensure the implementation of human rights in Africa. It makes an assessment of the role of Africa’s oldest regional human rights body, the African Commission on Human and Peoples’ Rights (African Commission) in the last 31 years of its operation (from 1987–March 2018). It also considers the judicial role of the African Court on Human and Peoples’ Rights (African Court) in the last 12 years of its operation (from 2006–March 2018). The increasing contribution of both the Commission and the Court to the protection of human rights under the African Charter on Human and Peoples’ Rights is rarely subjected to scrutiny in mainstream human rights literature. The article is limited to the consideration of the Commission’s contribution with respect to: (i) decisions on admissibility of communications concerning mainly exhaustion of domestic remedies; (ii) decisions on merits of communications; (iii) adoption of resolutions, principles/guidelines, general comments, model laws and advisory opinions; (iv) special rapporteurs and working groups to deal with thematic human rights issues; (v) consideration of State reports and conducting on-site visits; and (vi) referral of communications to the African Court involving unimplemented interim measures, serious or massive human rights violations, or the Commission’s findings on admissibility and merits.

Stefano Recchia

Safe areas established by powerful states can improve short-term civilian protection during ethnic civil wars. Paradoxically, however, they may worsen the plight of vulnerable civilians over the medium term. This can occur in three ways. First, when safe areas encompass sizeable territories within a broader conflict zone, they may reduce incentives for protected groups to compromise during peace negotiations, thus prolonging hostilities. Second, there is a nontrivial possibility that protected groups will use the safe areas as a base for launching high-risk offensives, deliberately putting civilians at risk in the hope of drawing the protection forces more deeply into the war. Third, safe areas may embolden protected groups to seek unilateral secession, further increasing the risk of conflict escalation. By elucidating the causal mechanisms involved, this article helps us assess the probability of these outcomes occurring. States that consider intervening militarily to establish safe areas in ethnic civil wars need to weigh the short-term benefits against these possible longer-term downsides.

Maurits S. Berger

The main challenge of understanding Sharia in the West is its undefined nature. This contradicts the ease with which the term is used in public and political discourse, but also in the legal domain, which prides itself on its precision in terminology. This article addresses the question: What is the Sharia that Muslims in the West practice? To this end, a model is presented that provides tools to describe the complex interaction between Sharia, as practiced by Western Muslims, and their Western environment, and elucidates the ongoing dialectic of this interaction. The model further shows how Western Muslims adopt and adapt Sharia by manoeuvring between their specific needs in the Western context and the conditions set by that context. From a Western perspective, the model shows that issues of Sharia are usually discussed in legal terms, while most controversies are not legal but cultural in nature.

Accommodating Security Imperatives v. Protecting Fundamental Rights

The Challenge of States of Emergency in the Context of Countering Terrorism in Turkey

Emre Turkut

This article seeks to illuminate the use of exceptional national security and emergency powers in the fight against terrorism in Turkey. The article is organized in four parts. Section i looks at the role of terrorism in the activation and justification of a state of emergency and introduces the Turkish case within this context. Section ii explores the historical origins of the Turkish state of emergency regime and analyses the principles regulating emergency regime at the Turkish domestic level. Section iii examines the operation of governmental emergency powers by providing an analysis of the state of emergency practices in Turkey, both past and present. A principal focus is necessarily directed at the state of emergency and the measures deployed within this framework in Turkey’s predominantly Kurdish southeast, where emergency rule was in force from 1987 to 2002, and the recent nationwide state of emergency in the wake of the 15 July attempted coup. Section iv presents concluding remarks.

Chiara Favilli

The osce commitments agreed during several meetings held in the past years address economic, political and social aspects of migration. As far as Italy, while the national legal framework is almost in line with international standards, the adoption of practical measures, their implementation and the promotion of projects prove difficult. Moreover, the increased exposure that Italy faces as a country lying on the external maritime border of the European Union makes it more difficult to manage migration flows via the sea.

The Breakdown of State-building: From the Nation to Radicalisation

The Security Aspects of Exclusion and Identity Formation

Peter Knoope and Saré Knoope

This article attempts to explore the nexus between exclusionary state-building practices, inter-ethnic relations and Violent Extremism and Radicalisation that Lead to Terrorism (verlt). The current focus on individual trajectories has left the social context in which individuals radicalise underexplored. By taking a birds-eye view, this article aims to untangle the ways in which particular historic conditions and perceptions of discrimination and marginalisation following state-building practices feed specifically into the radicalisation of minority communities. Following a comparison between state-building practices in Turkey, China and Spain and the impact on Kurdish, Uyghur and Basque identity construction respectively, the authors argue that the failure to include minority groups into the identity of the state is one of the key reasons for the politicisation of minority identities. This implies the need for inclusionary policies as a response to verlt. It is exactly through the promotion, facilitation and execution of inclusive policies that the osce can make an important contribution.