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Pauline Melin

Abstract

In December 2018, the Global Compact for Migration was first adopted at the Marrakesh intergovernmental conference to be later endorsed as an UN General Assembly Resolution in New York. From an EU perspective, what started out as a common project to manage migration globally, not to say externally, became a fiasco for the unity of EU representation on the international scene. Unlike the negotiations of international agreements which are framed by the procedure set out in Article 218 TFEU, the negotiations of international soft law do not benefit from a clear legal framework. The Court of Justice has given some indications on the procedural and institutional aspects relevant for the negotiations of international soft law instruments in the Council v. Commission (C-660/13) case but many uncertainties remain. The purpose of this article is to draw lessons from the negotiation process of the Global Compact for the unity of EU representation.

Kiri Santer

Abstract

The gradual empowerment of the Libyan Coast Guard through EU training and funding has introduced them as a new actor in the Central Mediterranean amongst other civil and military actors intervening to prevent loss of life at sea. This article examines the contested recognition of the authority of the Joint Rescue Coordination Centre Tripoli over the newly formalized Libyan Search and Rescue Region. It argues that the recognition of the Libyan coordination authority made by the International Maritime Organisation, has changed the way the international waters separating Libya and Europe are governed. Through the close analysis of three ethnographic vignettes depicting instances of rescue of migrants by an NGO vessel, this article illustrates how the Italian authorities are able to exercise control over this vast area indirectly via the formalization of the Libyan authority and concomitantly imped the operations of civil rescue NGO boats in the zone. This formalization enables Italian authorities (and their EU counterparts) to establish a form of indirect governance in this liminal border zone that clashes with other preceding legal orders which regulate distress cases at sea, i.e. international maritime law.

Anna-Maria Konsta

Abstract

The present article attempts a brief presentation of the legal framework in relation to the protection of the right to education and the protection of the human dignity of refugees, with reference to international and emphasis on European law, in an effort to recognize the inviolability of the right to education of refugees. At the same time, the question is raised if there is an independent right to human dignity or if human dignity is merely a framework term in light of which one could interpret, for example, the right to education of refugees. Through the discussed case-law of the European judicial and quasi-judicial bodies, which use the concept of human dignity, in order to protect asylum seekers, a European concept of human dignity has emerged, which may be acknowledged as an absolute fundamental right.

Balaniyot, Baths and Beyond

Israel’s State-Run Ritual Baths and the Rights of Women

Nahshon Perez and Elisheva Rosman-Stollman

Ritual immersion in Israel has become a major point of contention between Israeli-Jewish women and the state-funded Chief Rabbinate of Israel. In order to conduct a religious household, Orthodox Jewish women are required to immerse in a ritual bath (mikveh) approximately once a month. However, in Israel, these are strictly regulated and managed by the Chief Rabbinate, which habitually interferes with women’s autonomy when immersing. The article presents the case, then moves to discuss two models of religion-state relations: privatization and evenhandedness (roughly the modern version of nonpreferentialism), as two democratic models that can be adopted by the state in order to properly manage religious services, ritual baths included. The discussion also delineates the general lessons that can be learned from this contextual exploration, pointing to the advantages of the privatization model, and to the complexities involved in any evenhanded approach beyond the specific case at hand.

Mikhail Antonov

This paper analyzes the cultural constraints imposed in the Russian legal system by the prevailing social philosophy, which is characterized by a significant degree of religious conservatism and communitarianism. This conservatism is predictably opposed to sexual minorities and to those who want to defend or justify them. The author concludes that this philosophy strongly affects decision-making in Russian courts, and can sometimes overrule the provisions of the Russian Constitution and the laws that formally grant protection to sexual minorities. In turn, this conservative social philosophy and communitarian morality are based on religious patterns that are still shaping the mindsets and attitudes of Russians. These attitudes cannot be ignored by judges and other actors in the Russian legal system, who to some extent are subject to the general perception of what is just, acceptable, and reasonable in society, and are factually bound by this perception.

Anicée Van Engeland

According to some interpretations of Islam supported by gender activists, the veil can be perceived as a passport that enables women to participate in public affairs. This argument has been overlooked by the courts, including the European Court of Human Rights. The latter has adopted a discourse that considers the veil to be a threat to public order and gender equality, and more recently, an obstacle to social cohesion. By doing so, the Court has excluded veiled European Muslim women from the public sphere. The Court has justified curbing freedom of religion by granting states a wide margin of appreciation on the basis of the concept of “living together.” I argue that the Court needs to take the “passport veil” into account to be consistent with its argument on living together. A shift of approach and discourse would constitute a new way of understanding integration through the veil.

Antonio Arcudi

In recent norm research, the question of the relationship between norm contestation and norm dynamics has been the subject of substantial debate. However, until now too little attention has been paid to the question of how and when contestation intensifies. Based on the differentiation between applicatory and validity contestation, this article proposes a specific mechanism for intensifying contestation—understood as an increase in the contestation itself as well as an extension to its validity level—by treating norm modification as an intervening variable. The main argument is that norm modification may be necessary to reconcile different interpretations of norms. Consequently, if norm modification does not occur, norm contestation may intensify. This article elaborates this mechanism by examining the controversies involving the International Criminal Court (icc). It shows that contestation began at a low and applicatory level but intensified after several attempts at norm modification had failed.

Introduction

Norm Contestation and its Effects: Challenges to the Responsibility to Protect and the Responsibility to Prosecute

Gregor P. Hofmann and Lisbeth Zimmermann

Contestation is currently one major field of research on international norms: does contestation strengthen or weaken a norm? What role does international law play in this regard? How do norm proponents and norm challengers change their strategies in norm contestation processes? Drawing on constructivist perspectives as well as on international law, the articles in this Special Issue explore the effects of norm contestation and its dynamics by analysing the Responsibility to Protect (R2P) and the responsibility to prosecute from different theoretical perspectives.

Nicole Deitelhoff

Recurring contestation of the application of the Responsibility to Protect (R2P) in conflict situations has given rise to assessments that portray R2P as not a norm at all, but rather a norm-to-be or one in decay. This article aims to show that norms do not lose their validity because they are contested. All norms rely on applicatory discourses to establish their appropriateness for given situations. Contestation regarding their application can even strengthen norms when it provokes learning processes. Norm validity is at risk if contestation radicalises, that is, turns into norm justification. As yet there are only few signs of radicalisation of the contestation of R2P.