Browse results

Abstract

The ECtHR’s ruling in ES v Austria raises questions about the Court’s methodology in blasphemy cases. The ECtHR interprets Article 9 of the Convention as including a right to respect for religious feelings and presumes that ‘justified indignation’ may disrupt ‘religious peace’. Therefore, expression counting as ‘gratuitously offensive’ to religious feelings is not granted protection under Article 10. es v Austria reveals certain problems that arise when criticism of religion is driven by hatred and when religious insult merges with political criticism. This article argues that Strasbourg’s approach to blasphemy increases uncertainty about the boundaries of free speech. The terms ‘religious feelings’ and ‘religious peace’ are scrutinised, and the political context of es v Austria analysed. It concludes that by failing to distinguish clearly between blasphemy and incitement to hatred, and by upholding the criminalisation of questioning the Prophet Muhammad’s morals, the Court has jeopardised freedom of expression in Europe.

In: European Convention on Human Rights Law Review
Author: Kate Ferguson

Abstract

This article explores the British government’s recent Myanmar policy, its response to the Rohingya crisis of 2017, and the extent to which increasing scrutiny from parliament and civil society in reaction to the atrocities in Rakhine prompted clearer articulation of a national approach to atrocity prevention. The article presents five key failures and argues that a goal for those wishing to preserve and strengthen the principle of the Responsibility to Protect, and advance the goal of preventing mass atrocities, must be to break it free of the United Nations sphere and integrate the pillars into state structures.

In: Global Responsibility to Protect

Abstract

This intervention discusses the reasons why the international community failed to prevent atrocity crimes against the Rohingyas in Myanmar. It draws on the author’s personal experience as UN Assistant Secretary-General for Human Rights from 2010 to 2016 and Special Adviser of the Secretary-General on the Responsibility to Protect from 2016 to 2018. It lays out five major ingredients of the failure to prevent atrocities in Myanmar and identifies three key lessons that must be learned to avoid continued failures into the future.

In: Global Responsibility to Protect
Author: Ilias Bantekas

Abstract

This article seeks to examine homosexuality from the lens of two particular ancient Christian writers, namely Paul the Apostle and Maximus the Confessor. Both were fervent missionaries and did not perceive their writings as doctrinal or philosophical, but merely practical and a defence against other heretical teachings. Even so, contemporary scholars recognise a great profoundness and innovation in their theology. Paul’s references to homosexuality consist of only three or four sentences, whereas Maximus does not discuss the issue directly, given his preoccupation with matters pertaining to the nature of Christ, which at the time were fiercely contested among various Christian groups. The purpose of the article is to examine scriptural references to homosexuality from the perspective of the spiritual context in which they are made, rather than the canonical, ethical or social perspectives to which most scholars and civil society—whether in favour or against—refer to. Homosexuality in the sense of sexual orientation is unknown at the time and even so it is not specifically singled out. Paul seems to be specifically chastising exploitative sexual actions and relationships, whether homosexual or heterosexual.

In: Religion & Human Rights
Author: Renae Barker

Abstract

The relationship between the state and religion in Australia exists in a state of tension. On the one hand the “non-establishment” clause in section 116 of the Australian Constitution points to the separation of religion and state. On the other hand there is a high level of cooperation between the state and religion in the public sphere, most visible in the funding of religious schools by the federal government. These two visions of the Australian state-religion relationship are in tension. One requiring the removal of religion from the public sphere while the other calls for a plurality of religions to be accommodated in public spaces. This article seeks to resolve this tension by proposing a new way to understand the Australian state-religion relationship as non-establishment pluralism. Non-establishment in the sense that the Australian Constitution prohibits the establishment of any religion—be that a single state church, multiple state religions, or religion generally. Pluralism in that the state via ordinary legislation, public policy, and government action cooperates with religion in numerous areas of state and religious interest in the public sphere.

In: Religion & Human Rights

Abstract

The world has failed the Rohingya. Yet, the essence of this failure is widely misunderstood. While the existing literature on the Rohingya crisis tends to blame specific agents for having failed to fulfil their obligations under the Responsibility to Protect (R2P), this article directs our attention to the structural obstacles to mass atrocity prevention in Myanmar. Given the high risk of mass atrocities against the Rohingya and low feasibility of effective protection under any of the three pillars of R2P, it concludes that it was never plausible that R2P could work in this case. The idiom of R2P ‘black holes’ is introduced to denote situations where nothing that can realistically be done within the framework of R2P is likely to be sufficient to prevent mass atrocities or protect the victims.

In: Global Responsibility to Protect
Author: Ellen Nissen

Abstract

This contribution demonstrates that the CJEU cases Ruiz Zambrano and Chavez-Vilchez are particularly significant from a children’s rights perspective. The article connects these two judgments and their implementation in the national Dutch context, with three commonplace themes from children’s rights literature; (1) the child as an equal bearer of rights, (2) the child as a distinct bearer of rights, and (3) the important role of developmental research. This perspective shows that the approach adopted by the CJEU with regard to the EU citizen child is paradigm shifting, as it breaks with dominant approaches in fundamental rights law and immigration law which historically place parental rights front and centre. The contribution demonstrates that the importance of this shift cannot be underestimated, because it provides the contested notions of children’s rights and the Convention on the Right of the Child (CRC) with both legitimacy and meaning.

In: European Journal of Migration and Law

Abstract

What was the added value of the Ruiz Zambrano judgment of the Court of Justice of the EU for the development of EU citizenship? And how does that affect the national level? In this contribution the case of Ruiz Zambrano and the subsequent case law of the Court of Justice and the Dutch courts is assessed to reveal its impact on EU citizenship and the protection of fundamental rights. The contribution shows that Ruiz Zambrano could be called a revolution, in the sense that irrespective of the exercise of free movement, nationals of the Member States can invoke their status of being an EU citizen. That has consequences for family reunification, and the right to reside as a family in the EU. However, the line of case law is still very limited and can be restricted on grounds of public policy and security (and public health; so far there is no case law on restriction on public health and Article 20 TFEU, but in the context of Covid-19 that might be different in the near future). Moreover, the fundamental rights narrative in the cases on Article 20 TFEU became more prominent. However, the implementation of this line of case law lies at the national level and the Dutch case law on Article 20 TFEU is therefore analysed as an example.

In: European Journal of Migration and Law
Author: Stephen Coutts

Abstract

Rendón-Marín and CS permit the limitation of Article 20 TFEU rights on the basis of public security considerations. In elaborating a legal framework for this limitation, the Court of Justice draws on the body of law developed for that purpose under Article 21 TFEU rights and Chapter VI of Directive 2004/38/EC. However, the rights enjoyed by individuals on the basis of Article 20 TFEU are qualitatively different from those enjoyed under Article 21 TFEU, a difference that is not taken into account properly in the judgments of the Court. Conceptual and practical difficulties accordingly emerge. The judgments also reveal the increasing imbrication between Union law and national law in the regulation of citizenship and territory in the Union.

In: European Journal of Migration and Law

Abstract

It is almost ten years since Ruiz Zambrano decided that Article 20 TFEU precludes national measures which deprive EU citizens of the genuine enjoyment of the substance of their citizenship rights. The CJEU has since then clarified when the substance of rights test applies. This article highlights several inconsistencies and unresolved puzzles in the case law. First, contrary to what was initially suggested, EU citizens can be deprived of the substance of their rights. Second, contrary to what initial judgments suggested, the substance of rights test is not independent of but grounded in the right to free movement. This suggests that the same level of protection can be provided to EU citizens without this test, simply by relying on EU free movement law. The paper concludes by suggesting that these deficiencies can only be resolved by reconsidering the substance of rights test altogether.

In: European Journal of Migration and Law