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The Asian Yearbook of Human Rights and Humanitarian Law

Volume 3, 2019, Law, Gender and Sexuality

Series:

Edited by Javaid Rehman, Ayesha Shahid and Steve Foster

The Asian Yearbook of Human Rights and Humanitarian Law aims to publish peer-reviewed scholarly articles and reviews as well as significant developments in human rights and humanitarian law. It examines international human rights and humanitarian law with a global reach, though its particular focus is on the Asian region.

The focused theme of Volume 3 is Law, Gender and Sexuality.

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Naveed Ahmed

Abstract

Pakistan had a turbulent history of Constitutional and political development which not only destabilized democracy but circumvented the economic development as a result of weak constitutional structures. The three martial-law regimes (i.e. Ayub, Zia and Musharraf) not only elected themselves as presidents of Pakistan through so-called polls but also managed to form weak Parliaments in order to take control over it by introducing random amendments in the Constitution of Pakistan which messed up the process of development. The key objective of this article is to examine the impacts depicted on the constitutional, political, economic aspects and the rule of law situation in Pakistan as a result of some judicial decisions by the apex Court.

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Scott Titshaw

Abstract

This paper examines the jus sanguinis inherited citizenship of children conceived through assisted reproductive technology under United States, Australian, and Canadian law. While most countries use one set of rules to determine parentage for both citizenship and other purposes, these countries do not. They generally define parentage at the state, provincial, or territorial level, while independently determining parentage for citizenship purposes at the federal level. This article analyzes and compares these current federal approaches to families and citizenship, lays out alternatives, and discusses their merits and disadvantages.

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Margaret Liu

Abstract

The plight of migrant workers affects their children in two ways: some children are becoming economic orphans or ‘left behind children’ as their parents have left in search of work in cities; others, who accompany their parents from villages to cities, are denied access to a State school in the cities. In today’s China, children from rural areas are denied access to State-funded schools in cities where their parents have migrated to. The protection of the education of migrant children gives legitimacy to their legal capacity, but also practical incapacity resulting from the household registration system and discriminatory educational policies. The development of migrant-self-formed-schools highlights the changing State-society relationship and casts doubt on the sustainability of State practices. For this article, a legal method was employed by which migrant children’s right to education was investigated and studied theoretically and practically, with a wide range of studies from government documents, both published openly and internally, together with a literature search from academic sources and interviews. The results indicate that there are about 36 million migrant children in 2017 who are denied access to State schools in the cities, although China ratified the UN Convention on the Rights of the Child in 1992 and domestic law highlights free education to all children ushered in by the ‘Compulsory Education Law.’ The findings suggest that China should establish a rights-based approach to protect migrant children’s right to education so that initiatives in economic transformation do not further marginalize migrant children.

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Shaheen Sardar Ali

Abstract

This article interrogates how ‘claims’ based on sexual identities and orientation that were, until recently, neither publicly articulated nor officially accommodated in State law, are raised and dealt with in legislation and case law in Pakistan. Focussing on transgender communities in Pakistan, known variously as ‘hijra’, ‘khusra’ or ‘khwajasara’, it analyses implications of their successful claims for civil and political rights as well as application of family laws to them. Using legislation and case law from Pakistani courts, this article highlights the far-reaching potential for challenging established and entrenched norms in Muslim family law in Pakistan as a result of identity rights accorded to transgender persons. The article calls for a more nuanced interpretation of the formal success of transgender rights arguing that, in practical terms, recognition of their claims may result in rather limited advantages.

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Matthias Vanhullebusch

Abstract

This human rights report presents a collection of cases where human rights conditions have worsened and improved according to international commentators. It covers three different topics where both domestic and international human rights advocacy is at play when denouncing and advancing human rights protection on an individual and collective basis. It concerns, firstly, cases of accountability for human rights violations and even the commission of international crimes in Myanmar and the Philippines; secondly, matters of (non-)discrimination, collectively, in the struggle for self-determination of the peoples of Jammu and Kashmir in the Indian and Pakistani administered part, on the one hand, and individually, regarding the respect for equality on the basis of sexual orientation in India, Japan, Mainland China and Taiwan; thirdly, the respect for different civil and political liberties including of expression in Singapore and Japan as well as of the right to vote in Cambodia.