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Gregor P. Hofmann and Kavitha Suthanthiraraj

This article seeks to shed light on the question of how ‘meanings’ of an international norm adapt to norm contestation and asks whether and how R2P is being adapted to contestation. We contend that the reframing of an existing international norm by norm proponents in order to adapt it to dynamics of norm contestation have not been discussed adequately in the literature to date. Constructivist research on norm contestation could benefit from taking into account concepts in the new institutionalist literature. By combining the institutionalist concepts of ‘borrowing’ and ‘sharing’ with the literature on norm entrepreneurs and their framing-attempts in norm diffusion processes, we conjecture that an expansion in contestation increases the likeliness of the adaptation of the norm in question along the line of the contested issues. We aim to trace this adaptation by analysing the dynamics of R2P’s change in meaning and focus in its process of implementation.

Shirley V. Scott and Roberta C. Andrade

The Responsibility to Protect (R2P), touted in 2009 as ‘the most dramatic normative development of our time’, is highly contentious, having generated a scholarly literature far greater than its real-world impact would seem to warrant. This may well be because of its potential to challenge and displace core existing norms, the most widely cited of which is sovereignty. This paper draws on the theory of Cognitive Structures of Cooperation (csc Theory) to identify the relationship of R2P to existing normative structures, including the Charter of the United Nations, with a view to assessing the depth of the challenge posed and the potential consequences if the emergent norm were to be fully embraced. The analysis concludes that, rather than representing the object and potential victim of the R2P assault, sovereignty is better understood as having represented a decoy in this process of normative contestation.

Ross Holder

Abstract

As an officially recognised minority nationality in China, the Uyghurs’ unique religious identity is ostensibly protected under Chinese national law. In reality, such protections are limited in practice, with frequent claims by Uyghur activists, human rights NGOs and scholars that government policies result in the religious discrimination of the Uyghur population in Xinjiang. In light of the inefficacy of state legislation in protecting the Uyghurs’ religious freedoms, this article considers the protections offered within the Human Rights Treaty System of the United Nations (UN), of which China is both a charter member and an increasingly active participant. However, any attempt to consider Freedom of Religion or Belief protections within the UN’s core treaties remains frustrated as China has yet to ratify the International Covenant on Civil and Political Rights, which is the sole UN human rights instrument to contain provisions dedicated to religious and minority rights. To overcome this issue, this article argues that acts of religious discrimination against the Uyghur minority may also fall into contention with the protections contained within the International Convention on the Elimination of All Forms of Racial Discrimination, a treaty that has been ratified by China and is therefore legally obligated to comply with.

Charlotte Helen Skeet

Abstract

This article provides an anti-Orientalist critique of jurisprudence within the European Court of Human Rights. Discussion is located in the context of the longstanding debate over what it is to be “European” and an awareness of how these wider discourses shape rights adjudication at national and intra-national levels in Europe. Argument draws on literature from post-colonial theorists, cultural studies, and feminist legal theory which identify and discuss “Orientalist” discourses to analyse the production of legal knowledge and jurisprudence from the European Court of Human Rights. The article argues that Orientalist discourses affect the ways that the Court constructs and positions both the claimant and the respondent state in human rights claims. These constructions influence cases involving Muslim claimants and have a particularly negative impact on the outcome of claims by visibly-Muslim women. The final part of the article suggests ways that these negative discourses and constructions can be countered.

Honest Scales

Challenging Structural Discrimination in Alberta v. Hutterite Brethren of Wilson Colony

William Kenny

The decision in Alberta and Hutterite Brethren of Wilson Colony refocused attention on the role played by the final limb of the Oakes test when considering the proportionality of the limitation of a Charter right. This article seeks to re-examine this decision and challenge the structural discrimination it created by requiring minorities whose belief gives a religious value to a facially utilitarian practice which may not be apparent when considered from a secular perspective. In particular it examines the potential benefits of allowing a liberal perspective of group rights to inform the weight courts’ give to the detriment faced by a community and argues that this revised approach to balancing would result in outcomes more reflective of the values codified in the Charter.

The Legal Status of Religious Groups in Argentina

Toward a Multi-Confessional System

Fernando Arlettaz

The Argentinian Constitution of 1853 established a religious policy based on two main principles: freedom of religion and the privileged status of the Catholic Church. In 1966, an agreement with the Catholic Church eliminated the power of the government to interfere in ecclesiastical matters, but maintained the privileged status of Catholicism. Today, the religious configuration of Argentinian society differs greatly from that of the 19th century. Amidst increasing religious diversity, some legal changes point to the transformation of the Argentinian regime from a nearly confessional state into a multi-confessional, yet not an egalitarian one.

Anna Magdalena Kosińska and Barbara Mikołajczyk

Abstract

The aim of this article is to attempt constructing a conceptual framework and define the right to migration security and include it in the Europe-wide discourse on the migration crisis. In the adopted approach, the right to migration security is a third-generation right, i.e. a solidarity right in the doctrine of human rights. This right protects primarily the receiving society against the threats resulting from migration flows. On the other hand, non-voluntary immigrants have the right to seek protection in a secure way. The study analyses the range of the right to security in the context of human security and points out the necessity of ensuring the security of migration processes, which poses a special challenge to the international system of human rights. The authors also focus on highlighting the strengths of third-generation rights as a remedy to the problems faced by the international community. Finally, the authors propose to include the right to migration security in the EU’s system for the protection of fundamental rights and the guarantees functioning within the Area of Freedom, Security and Justice.

Dáire McCormack-George

Abstract

This paper outlines an argument for the equal treatment of third-country nationals in the EU. The argument is in two parts. It argues, doctrinally, that the reasons in favour of treating third-country nationals equally are weighty. Second, it suggests that, politically, conceptually and sociologically, third-country nationals should generally be entitled to equal treatment, a guarantee which may be subject to specific exceptions. The reasons for such exceptions should be clearly stipulated by public authorities. The approach which emerges from this position should lead to a more coherent concept of equality emerging in EU law, something which should be amenable to European egalitarians.

Enkelejda Koka and Denard Veshi

Abstract

Since 2011, due to the Syrian civil war, Libya’s institutional breakdown and Eritrea’s political unrest, record high numbers of irregular migrants have been arriving at the EU’s south-eastern external borders, publicly known as the ‘Europe’s refugee crisis’. The most pressurised borders have been those of Greece and Italy. The human smuggler’s ‘organised refugee’ strategy has identified various legal issues resulting from the application of parallel legal frameworks both at regional and at international level. The EU Member States’ policy-making response to human smuggling has created loopholes through conflicting interpretations of the international legal framework on search and rescue and the inconsistent application of human rights law. Hence, this article will argue that although the International Convention on Maritime Search and Rescue (SAR) and the EU Sea Borders Regulation purportedly adopted to set out clear rules on when to initiate search and rescue, have not addressed the issue of responsibility for and the consequences of failed rescue scenarios by inactive SAR States; thereby creating a gap in the legal framework on State responsibility for negligent or intentional failed rescues.

Anne Neylon

Abstract

This article examines recent trends in EU refugee law. It argues that within the EU there is a complex and technical set of rules and procedures that maintain the refugee in a position where protection can be easily denied or revoked. Engaging with the work of Judith Butler, I argue that this constant threat of removal exists on a ‘continuum of precariousness’. Mapping a number of EU legal practices, I argue that the EU has expanded this precariousness in order to manage the movement of people, transforming laws, which were ostensibly for the protection of persecuted people, into a form of post hoc immigration control. I track how this process is deeply rooted in bureaucratic practices, which construct place, space and attachment through the law.