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Justice Pending: Indigenous Peoples and Other Good Causes

Essays in Honour of Erica-Irene A. Daes

Serie:

Ediert von Gudmundur Alfredsson and Maria Stavropoulou

The articles in this volume deal with many of the issues, which have been and continue to be on the international law and human rights agenda of Erica-Irene A. Daes. She is an international personality, with a long and varied career, but she has been and is passionately involved in a wide range of issues related directly or indirectly to the Greek experience and the Greek diaspora.
The energy and output of Erica Daes culminated in her tireless efforts to seek protection for the world's indigenous peoples. It is in this capacity that the international human rights community has best learned to know and appreciate her. As an independent expert, she has served as Chairman of the Working Group on Indigenous Populations and she has carried out studies on indigenous land rights, intellectual and cultural rights, and indigenous heritage. She played a key role in bringing about an international year (1993) and a decade (1995-2004) for the promotion of the rights of indigenous peoples.
Most importantly, Erica Daes was the principal drafter of the UN draft declaration on the rights of indigenous peoples, which has become known as the Daes Declaration and which is reproduced in an annex to this book. Other annexes contain excerpts from her documents prepared in the context of her UN career, some of which have not been previously published.

EC Law and Minority Language Policy

Culture, Citizenship and Fundamental Rights

Niamh Nic Shuibhne

The European Community has pledged respect for the cultural and linguistic diversity of its Member States and has recognized minority languages as an inherent constituent in this regard. This development reflects a broader trend within the Community towards grappling with less obvious aspects of supranational governance. Minority language groups turn optimistically to `Europe' in response.
But, despite rhetorical promises, just what can the EC actually be expected to do in the realm of minority language protection, a politically sensitive and traditionally domestic concern?
Arguments put forward to date focus primarily on philosophical, moral, economic, and political discourse. While these considerations are a vital aspect of the debate on minority languages and on linguistic diversity more generally, the question of legal basis remains largely unanswered.
For the first time, this book traces comprehensively the existence of an appropriate legal basis for action undertaken by the EC in this domain, striving in particular to locate a pragmatic yet effective balance between legitimate possibility and acceptable limitations.

Serie:

Ediert von Kirsten Hastrup and George Ulrich

Discrimination on the basis of race, gender or other ascribed group affiliations or individual identities is an all too well-known phenomenon. International instruments are invoked and refined to alter this situation, but often to little avail. In the present volume, authors from across the globe explore the nature and forms of discrimination and seek to establish a new conceptual ground for addressing the issue.
Toleration is often advocated as a remedy for discriminatory practices. In contrast to tolerance, which is seen as an attitude, toleration implies an active engaging of difference. In this volume, several authors address the inherent complexities of the notion itself, not least the implication of asymmetry between the tolerant and the tolerated.
A central theme throughout the volume is the relative force of law and other areas of public concern in addressing the issues of both discrimination and toleration. From a wide range of legal, literary, anthropological, and philosophical perspectives, the authors also show how the role of the intellectual is vital in reshaping the discourse and in redirecting practices that may affirm the equal worth of all humans.

Ediert von Christof Heyns and Frans Viljoen

The six main United Nations human rights treaties enjoy almost universal ratification today. Almost 80 per cent of the possible ratifications have been made, and every Member State of the UN has ratified at least one of these treaties.
The nearly universal acceptance of the treaties on the formal level, however, does not automatically translate into the norms contained in these documents being made a reality in the lives of the billions of people living in these countries. The treaty system is notoriously weak in terms of international enforcement, and there is a general suspicion that it has had little impact at the domestic level.
Mechanisms to improve the international enforcement mechanisms of the six main treaties have been a topic of discussion and research for many years, but the domestic impact of the treaties has never been investigated in a systematic and comprehensive manner.
This book constitutes the most ambitious attempt so far to establish the impact of the treaties at the domestic level. The following treaties in 20 United Nations Member States are investigated: the Convention on the Elimination of All Forms of Racial Discrimination, the Covenant on Economic, Social, and Cultural Rights, the Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture, and the Convention on the Rights of the Child.
This book reflects the findings of 20 researchers, based in the countries investigated, under the leadership of Professors Christof Heyns and Frans Viljoen of the Centre for Human Rights, University of Pretoria, in a study done in co-operation with the United Nations High Commissioner for Human Rights.
The influence of the treaties in each of the 20 countries is investigated in respect of its influence on the continuation, legislation, court cases, policies and practices, and the impact of the treaty system in civil society.
In an overview chapter by the study leaders based on a comparison of the available data, common trends and patterns are identified, and recommendations about reforms on the national and international level are made.
This is a book that should be read by all those interested in the development of the international human rights system.

Legal Cultures and Human Rights

Volume 1: The Challenge of Diversity

Ediert von Kirsten Hastrup

Cultural diversity, as expressed for instance in different normative orders or legal cultures, poses both a practical and a theoretical challenge to the idea of universal human rights.
In the present volume, the authors seek to address and contain this challenge with a view to the changing nature of the global society. While 'culture' is sometimes signposted as an obstacle to human rights on the ground, this volume suggests that in so far as the global 'culture of human rights' is primarily seen as a formal and institutional order based on a particular view of equal human worth, local cultures cannot trump it.
The main point is that the culture of human rights is inclusive of all and must maintain a standard by which all peoples and cultures can measure their own performances. Further, and as demonstrated in the present volume from a range of disciplines such as law, literature, history and anthropology, culture is not a mental prison but a particular outlook upon the world, for ever changing in response to new experiences and insights.

Ediert von Walter A. Kemp

Quiet Diplomacy in Action is the first comprehensive account of the work of Max van der Stoel as High Commissioner on National Minorities for the Organization for Security and Co-operation in Europe (OSCE). Because Van der Stoel worked discreetly, until now very little has been written about his activities. This book takes the reader behind the scenes to explain why the post of High Commissioner was created, what his mandate is, how he worked in practice, and what recurrent themes and issues he encountered. Quiet Diplomacy in Action also gives a detailed summary of the High Commissioner's activities in the more than fifteen countries that he was involved with between 1993 and 2001. Major documents relating to national minorities in the OSCE context are included in an annex.
As Michael Ignatieff writes in the Foreword: `Everyone talks about conflict prevention. One of the few senior figures that actually does it is the OSCE High Commissioner on National Minorities'. This book, written in co-operation with Mr. Van der Stoel, gives a unique insight into conflict prevention, minority rights, and the challenge of resolving inter-ethnic tensions. It should be considered a primary resource for all those interested in these subjects.

Serie:

Ediert von René Kuppe and Richard Potz

The Law & Anthropology Yearbook brings together a collection of studies that discuss legal problems raised by cultural differences between people and the law to which they are subject.
Volume 11 of Law & Anthropology includes eight studies that discuss various forms in which the rights of indigenous people are violated.
Topics include: the emergence of indigenous law in Chile as an example of legal pluralism; the impact of Peruvian national legislation on indigenous peoples; and the fishing dispute in Atlantic Canada following the decision of the Supreme Court of Canada acknowledging that the aboriginal right to fish was never extinguished.

Tim Potier

The conflicts in the South Caucasus are now a decade old, but still appear impervious to solution. The hopes that independence raised have been dashed by an insidious cocktail of past and present regional hegemony, historical antipathy and Soviet planning. Armenia, Azerbaijan and Georgia, thus, continue to wait for their long awaited Spring.
In a region where Western academic writing has focussed, during the last decade, almost exclusively on the dynamics of regional security and Great Power rivalry, even in the context of conflict, this volume provides an important and necessary legal appraisal of the possible processes and structures which may, ultimately, facilitate the finding of constitutional settlement in Nagorno-Karabakh, Abkhazia and South Ossetia.
In the work, Tim Potier, an academic lawyer with much experience in the Caucasus, has written a powerful but dispassionate account which will prove not only to be of use to academics, diplomats and government officials working in the region, but also be of lasting value to the ongoing development of the international law on self-determination and autonomy. Dr Potier also considers the fate of what he prefers to term, `regionally non-dominant titular peoples'.

International Law and Self-Determination

The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial 'National' Identity

Serie:

Joshua Castellino

The principle of self-determination has at heart the achievement of true representation and democracy based on the idea that the consent of the governed alone can give government legitimacy. The principle was primarily responsible for the decolonisation process that shaped our current international community. `Self-determination' has been used in equal rhetorical brilliance by a number of leaders - some meritorious, with a genuine concern for human emancipation, others dubious, with ascendancy to power at the heart of their project. In any case, `self-determination' has come to mean different things in different contexts.
Being a vital principle, especially in the post-colonial state, it is one factor that represents a threat to world order while at the same time holding out the promise of longer-term peace and security based on values of democracy, equity and justice. This book looks at the intricacies of the norm in its current ambiguous manifestation and seeks to deconstruct it with regard to three particularly inter-related discourses: that of minority rights, statehood and sovereignty, and the doctrine of uti possidetis which shaped the modern post-colonial state.
These norms are then analysed further within two case studies. One, concerning the creation of Bangladesh where `self-determination' was achieved. The second, examines the situation in the Western Sahara where `self-determination' (whatever its manifestation) is yet to be expressed. In the course of these case studies we seek to highlight the problematic nature of `national identity' and the `self' in settings far removed from post-Westphalian Europe.

Accommodating National Identity

New Approaches in International and Domestic Law

Ediert von Stephen Tierney

This collection of essays brings together international lawyers with their perspectives on how the international community has coped with contemporary cases of nationalist crisis and constitutional lawyers from states which are attempting to facilitate the political expression of national identity through developments in federalism, devolution, and the protection of minority rights. The aim is to explore to what extent existing legal mechanisms permit a flexible engagement with, and accommodation of, the aspirations of national and ethnic groups. It would appear that a heightened level of fluidity in the interaction and exchange of normative standards now exists in the relationship between international and domestic law as both types of system confront the challenge which national identity continues to constitute. As this process marks a renewed preparedness on the part of legal systems to expand imaginatively to meet current problems it is hoped that this collection will highlight opportunities for an ongoing process of development in this complex and troubled area.