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Abstract

Selectivity is often understood as global powers using military intervention in certain humanitarian crises but not in others based on perceived strategic interests at stake. Though the scholarship has acknowledged selectivity’s practice, more disputed has been its ‘problematic’ ascription. Critics have correctly identified selectivity as a problem of hypocrisy, while advocates have construed it as necessary and even pragmatic. Importantly, however, both camps have premised selectivity as a problem of ‘inaction’ towards ‘non-intervened’ crises. In contrast to this existing ‘bystander complicity’ paradigm of selectivity, this article argues that selectivity must be reinterpreted as a problem of global power ‘active complicity’ to better understand and appreciate its problematic ascription. The proposed active complicity paradigm reveals the neglected colonial and imperial underpinnings within selectivity. It destabilises and challenges the idea that global powers simply ‘stand by’ as onlookers to disassociated, faraway crises, and instead highlights their key role in enabling and perpetuating them.

In: Global Responsibility to Protect
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Abstract

The most recent applications before the International Court of Justice (icj) under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (icerd), Armenia v. Azerbaijan and Azerbaijan v. Armenia, both claim that the destruction of cultural heritage during the Nagorno-Karabakh conflict constitutes a violation of the Convention. The applications have met with enthusiasm that icerd offers a potential new avenue for the protection of cultural heritage, as well as scepticism as to whether these claims fall within the scope of the treaty. Armenia and Azerbaijan bypassed the inter-State communications mechanism under Articles 11–13 before the Committee on the Elimination of Racial Discrimination (cerd), as they are legally entitled to do. But the cerd perspective remains important. First, the Articles 11–13 mechanism is available in relation to 182 States Parties, whereas due to reservations, the Article 22 mechanism is available only in relation to 157 States Parties. Second, cerd practice in relation to cultural heritage ought to inform the determination of the Court. This article investigates the cerd approach to the protection of cultural heritage. It draws in related questions such as whether religious cultural heritage comes under a treaty on racial discrimination; the applicability of these protections in situations of armed conflict; and icerd’s relationship with other specialised instruments. It offers conclusions as to what extent an avenue for the protection of cultural heritage under icerd exists before the Committee and the Court.

In: International Human Rights Law Review

Abstract

Scholars look to early modern canonical texts to understand the philosophical underpinnings of R2P. Meanwhile, critiques argue these origins couch Western imperial intentions. This article complicates the story by returning to a pivotal historical moment – the Spanish encounter with the Aztecs – to explore protective war from an overlooked angle: that of Spain’s indigenous allies, the Tlaxcaltecas. Despite being oppressed by the imperialistic Aztecs, canonical Western texts related to R2P and post-colonial critiques both elide the Tlaxcaltecas’ precarious agency – the rights and duties moulded by endemic structures of violence before, during, and after protective intervention – by problematically embracing simple binaries of European oppressor and indigenous oppressed. Restoring the Tlaxcaltecas to the story complicates tropes about imperial projections of force and the pervasive assumption in R2P discussions of the ‘innocent oppressed’. Our conclusions provide new perspective from which to view future Pillar 3 dilemmas by recognising that the protected sometimes have a bellicose role to play.

In: Global Responsibility to Protect
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Abstract

Though provided for in several treaties, including three universal human rights treaties, resort to interstate conciliation has been sparse. In 2018, however, the first three human rights interstate conciliations were initiated under the International Convention on the Elimination of All Forms of Racial Discrimination (cerd). While two of these have been suspended by mutual agreement, the third, Palestine v. Israel, is ongoing after the cerd Committee has concluded that it has jurisdiction to establish a conciliation commission. This article examines how suited conciliation is to advance the goals of interstate communications in human rights treaties, as well as conciliation more broadly. It also tries to identify critical factors that may determine the success or failure of such conciliations, particularly by drawing on lessons learned from the recent conciliation between Timor Leste and Australia under the UN Convention for the Law of the Sea, which successfully concluded with a delimitation treaty.

In: International Human Rights Law Review

Abstract

This article scrutinises the jurisprudence of the European Court of Human Rights and the Hong Kong Court of Final Appeal concerning same-sex marriage and the legal acknowledgment of same-sex relationships, specifically focusing on the recent decisions in Fedotova & Ors v Russia and Sham Tsz Kit (岑子杰) v Secretary for Justice. The authors critically analyse the courts’ interpretation of marriage, privacy, and equality. They conclude that whilst both courts took a step forward by recognising same-sex partnerships, they also took two steps back by foreclosing any future attempts to litigate for universal marriage rights via the application of the equality principle. The authors draw on a variety of judgments from courts in Nepal, Taiwan, the United States, Latin America, and Europe to support their arguments. The article concludes by posing the question of how universal human rights can be maintained in the face of these challenges.

In: Asia-Pacific Journal on Human Rights and the Law
Authors: and

Abstract

Rohingyas experience severe limitations on their rights and are the victims of mistreatment at the hands of State authorities. Starting from 1982, they have been unable to acquire citizenship which has been denied on the grounds of Rohingyas’ lack of connection with the national ethnic groups or taingyintha that can be traced to Burma’s quest for fostering national unity and shaking off the legacies of colonialism. This practice included excluding groups which did not fit into the nationalist criteria of Burmese State authorities – those who could not trace their ancestry to Burmese soil. Today, Rohingyas form the largest group of Stateless people in the world. This article attempts to investigate the crystallisation of the ethnic concept in Myanmar which has resulted in the erasure of Rohingyas and their identity, denying them their legal personality. The article will further investigate how the existence of systemic discrimination entails the deprivation of legal personality.

In: Asia-Pacific Journal on Human Rights and the Law
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In: Asia-Pacific Journal on Human Rights and the Law

Abstract

Throughout history, health-related disasters have devastated humanity. The prolongation and disproportionate impacts of health-related disasters are exacerbated by the fact that governments consistently adopt response policies that neglect the specific needs of the poor, leading to horrific violations of their human rights. This is largely due to governments frequently failing to take into consideration the specific needs and vulnerabilities of the poor when crafting and implementing policies to curb the health-related disaster. This article examines common policies adopted by governments across Southeast Asia in response to health-related disasters, highlighting how many of these policies, by design or implementation, violated the right to health of the poor.

In: Asia-Pacific Journal on Human Rights and the Law

Abstract

The development of commerce is inextricable from the development of human rights. Certainly, on the one hand the flow of global commerce operates to restrain states in their implementation of human rights, but on the other hand the network processes of global commerce simultaneously facilitate and promote human rights. In order to better understand this relationship between human rights and commerce, this article will provide novel insight into the historical evolution of the concept of “fungibility” to show how the concept serves as a necessary component of both contemporary law and contemporary commerce. Thereafter we conceptualise the deeply integrated nature of global commerce as a framework for explaining one of the circuitries through which human rights travel. This article then integrates these conceptual backgrounds in a case study of human rights-related due diligence in Indonesia to show an example of how this theoretical intersection between human rights and contemporary global commerce plays out in reality.

In: Asia-Pacific Journal on Human Rights and the Law