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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
Author:

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
Free access
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
Free access
In: European Convention on Human Rights Law Review