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Legalities Unbound?

Assessing the Role of Religion and Legal Pluralism at Four un Human Rights Committees

Helge Årsheim

International human rights law (ihrl) has traditionally enjoyed an uneasy relationship with customary, religious, and indigenous forms of law. International courts and tribunals have considered these non-state forms of law to represent both structural and material challenges to the implementation of human rights norms at the domestic level. Over the course of the last decades, however, the theory and practice of human rights has increasingly started recognizing and accommodating multiple legal orders. This article traces the gradually increasing accommodation of legal pluralism in ihrl in the monitoring practice of four un human rights committees over a period of 20 years, looking in particular at the increasing recognition of religious forms of legality across the committees.

Regulating Religion in Italy

Constitution Does (not) Matter

Pietro Faraguna

This article focuses on state-church relations and on the peculiar implementation of the “idea of secularism” in Italy. First, it explores the formal provisions of the 1848 Constitution. Next, it investigates constitutional provisions that came into force in 1948. Finally, it examines how the actors of the living constitution (legislators, the government, judges, and the Constitutional Court in particular) tried to balance and develop the potentially conflicting principles included in the 1948 Constitution in the area of religious freedom, equality, and state-church relations. The article explores three particularly controversial examples: the teaching of religion in state schools; the display of the crucifix in classrooms; and state funding mechanisms of religious denominations. The main claim of the article is that, with regard to the regulation of religion in Italy, the transformation of the constitutional position of religion did not occur within the formal constitution, but in the “living constitution.”

Arif A. Jamal and Jaclyn L. Neo

This essay introduces the Special Issue of the Journal. It discusses how changing religious demographics and heightened religious plurality are challenging existing thinking about, and patterns of, state-religion relations and the nature of the ‘secular state’. The essay briefly surveys each of the papers in the Special Issue and highlights that one of the key lessons that emerges from the papers is the importance of context. As the contexts evolve, fresh thinking and new arrangements would be needed.

The Secular State in a Declining Europe

Beyond the End of the European Universal Dream

Silvio Ferrari

The article provides data that attest to the severity of the European demographic, economic, and political decline, and considers one of its manifestations, the capacity of the secular state to cope with the transformations of the European religious landscape. The secular state has been a European invention, and the decline of Europe has inevitable repercussions for its vitality, in Europe and beyond. In Europe, the weakness of the secular state has been revealed by the diversification of the European religious landscape. A declining Europe is less and less capable of managing diversity using the tools provided by the secular state. Analysis of the different models of secular states implemented in Europe is followed by a reexamination of the issue of the decline of Europe, and of its effect on the reforms that are required to adapt the secular state to the new conditions.

Timo Kivimäki

This article investigates how selfish justifications enter cosmopolitan rationales in the political plane of the discourse. It makes sense of the ways in which selfish ideas are allowed to meddle in and merge with morally-based cosmopolitan norms. The article commits to the ontological and epistemological premises of critical discourse analysis, and focuses on us presidential papers since 1989. It substantiates the claims it makes by using computer-assisted discursive process tracing method as a supporting tool for qualitative analysis of texts. The computerised analysis of discursive entanglements reveals that cosmopolitan protective operations are in fact mainly framed nationalistically. The roots of such selfish nationalistic arguments for international protective military operations can be traced in the realist and hegemonic fallacies that emphasise the naturality of national selfishness and the need for global hegemony. Furthermore, the article shows how the entanglement of discourse strands about ‘protection’ and ‘innocent victimhood’ as well as the entanglement between ‘crime prevention’ and ‘terrorism prevention’ legitimate selfish internationalist arguments in the us political debate.

Timea Spitka

Although international norms on the Responsibility to Protect (R2P ), norms stemming from United Nations Security Council Resolution 1325 and the agenda of Women, Peace and Security (wps) have shifted the narrative from a state-centric to a human-centric approach to security, they have failed to intersect in the most difficult contexts. This paper examines the intersections between Pillar iii of R2P, Resolution 1325 and the agenda of wps with a focus on protection in Gaza. Within the Gaza context, all authorities can be seen as failing in their responsibility to protect, however, no steps have been taken toward operationalisation of protection under R2P. Examining protection through a gendered lens provides a critical mirror of strategies of protection as well as a roadmap towards improvement. The article argues that R2P in combination with the agenda of wps provides a potential tool for constructing a consensus prioritising protection of civilians in the most difficult contexts.

Mohammad Zahidul Islam Khan

What instruments and mechanisms are available to harness the ‘political will’ to pursue justice for the allegations of ‘atrocity crime’ in Rakhine, Myanmar? Analysing country’s ratification trend, declarations upon ratification on relevant global instruments, and interactions with the un on human rights issues, this paper reveals the ‘mind’ of Myanmar and its obligations. Exploring the mechanism of four International Crime Tribunals (icts), it outlines the pathways to pursue justice. Revealing the inadequacies of current actions by key state actors resulting in invidious outcomes that privilege impunity for atrocity crimes, the paper suggests ways to harness the political will to pursue justice. This paper contends that the establishment of an ict for the trial of atrocity crimes in Rakhine (ictm-R) would be best facilitated by: a consensus mandate to prosecute individuals and not the state; precisely defined jurisdiction; and provisions to integrate the host nation’s apparatus, buttressed by the advocacy of the right groups and media.

Hamzah S. Aldoghmi

Recently, there has been increasing recognition that the Responsibility to Protect principle (R2P) and refugee protection are inextricably linked and conceptually connected. The question remains, however, whether the link between the two protection frameworks can provide a basis for the protection of prima facie refugees fleeing mass atrocity crimes. This article identifies that prima facie refugees have the right to protection irrespective of where they arrive. It finds that the prima facie provision is one that exists under international refugee law and is highly relevant to the R2P principle. R2P facilitates a framework of prima facie protection, but it must include the political and legal norms of R2P and international refugee law. The article argues that expanding the idea of R2P and refugee protection as an interlinked agenda offers a protection-oriented framework to address the protection needs of prima facie refugees fleeing mass atrocity crimes.

Eamon Aloyo

I present an account of mass atrocity prevention based on just war theory precepts. This account entails comparisons among policy options and requires selecting the politically feasible option that has the greatest chance of avoiding atrocities. Adopting such an account of atrocity prevention highlights problems in influential mass atrocity prevention policy reports in that they fail to seriously consider nonviolent civil resistance as a mass atrocity prevention tool. Given that sometimes actors may be unwilling to live under the status quo, and agitate for reform by violent or nonviolent means, nonviolence is generally the preferable policy option. This is because under realistic scenarios, the empirical evidence generally indicates that nonviolent means are more likely to achieve positive outcomes across a range of indicators than violent ones. I illustrate my argument by applying it to strategies for democratisation, and rebut objections. Yet, nonviolent civil resistance is risky, and so revolutionary leaders and their supporters should weigh carefully the chances of success and the trade-offs of nonviolent resistance.