Search result: 401 articles

x
Human Rights Literature Review

Ukraine

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Dr. Tetyana Antsupova
Author's information

Dr. Tetyana Antsupova
Dr. habil., Judge of the Supreme Court (Ukraine).
Article

Federalization through Rights in the EU

A Legal Opportunities Approach

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords EU Charter of Fundamental Rights, Federalization, Integration, Legal change, Legal opportunities, Litigation, Scope of application
Authors Marie-Pierre Granger
AbstractAuthor's information

    While academic contributions abound on the reach and impact of the European Union (EU) system of fundamental rights protection, and notably on the desirability of a more or less extensive control of Member States’ actions in light of the rights protected by the EU Charter of Fundamental Rights, there have been few attempts to explain the dynamics of integration-through-rights in the EU. This article proposes an explanatory framework inspired by a legal opportunities approach, which emphasizes the relevance of national and EU legal opportunities, and interactions between them, in determining the actual scope and pace of federalization through rights in the EU. It suggests that the weaker the legal opportunities for fundamental rights protection are at the domestic level, the greater the federalizing pressure is, and call for more empirical comparative studies to test this framework out.


Marie-Pierre Granger
Associate Professor, Central European University, Budapest. The development of the conceptual framework proposed in this article was inspired by empirical studies on France and Hungary carried out within the EU-funded project ‘bEUcitizen: barriers towards EU Citizenship’ under the FP7 programme (Grant agreement 320294). This volume (The EU Bill of Rights' Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets `Momentum' Research Group.
Article

The Sovereign Strikes Back

A Judicial Perspective on Multi-Layered Constitutionalism in Europe

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Constitutional identity, constitutionalism, fragmentation, globalization, multilayered constitution, sovereignty, trust
Authors Renáta Uitz and András Sajó
AbstractAuthor's information

    The supranational web of public law is often described as a new constitutionalism. It emerged in a globalized world together with global markets. In the course of the multilayered constitutional experiment, the old, national constitutional framework had lost its ability to deliver on the key features associated with constitutionalism: limiting the exercise of political powers and preventing the arbitrary exercise thereof. In the multilayered era it has become difficult to pinpoint the centre of authority. Ultimately, someone needs to govern, if not for other reasons, at least to avoid chaos. Is it possible to have the guarantees of freedom, rule of law and efficiency that a constitutional democracy seems to provide in a system where there is no sovereign with authority?


Renáta Uitz
Renáta Uitz is Professor, Chair of the Comparative Constitutional Law Program, Department of Legal Studies, Central European University, Budapest.

András Sajó
András Sajo is University Professor, Central European University, Budapest. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Incorporation Doctrine’s Federalism Costs

A Cautionary Note for the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Bill of Rights, Charter of Fundamental Rights, diversity of human flourishing, federalism, incorporation, individual liberty, jurisdictional competition
Authors Lee J. Strang
AbstractAuthor's information

    In this article, I first briefly describe the U.S. Supreme Court’s decades-long process of incorporating the federal Bill of Rights against the states. Second, I argue that incorporation of the Bill of Rights has come with significant costs to federalism in the United States. Third, I suggest that the American experience provides a cautionary note for the European Union as it grapples with the question of whether and to what extent to apply the Charter of Fundamental Rights to its constituent nations. I end by identifying options available to the European Union to avoid at least some of this harm to federalism while, at the same time, securing some of the benefit that might be occasioned by incorporating the Charter.


Lee J. Strang
John W. Stoepler Professor of Law and Values, University of Toledo College of Law. Thank you to Csongor Istvan Nagy for organizing and hosting this conference, and to the conference participants for their thoughtful comments and criticisms. Thank you as well to Michael Stahl for his valuable research assistance. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Access_open Crisis in the Courtroom

The Discursive Conditions of Possibility for Ruptures in Legal Discourse

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords crisis discourse, rupture, counterterrorism, precautionary logic, risk
Authors Laura M. Henderson
AbstractAuthor's information

    This article addresses the conditions of possibility for the precautionary turn in legal discourse. Although the precautionary turn itself has been well-detailed in both legal and political discourse, insufficient attention has been paid to what made this shift possible. This article remedies this, starting by showing how the events of 9/11 were unable to be incorporated within current discursive structures. As a result, these discursive structures were dislocated and a new ‘crisis discourse’ emerged that succeeded in attributing meaning to the events of 9/11. By focusing on three important cases from three different jurisdictions evidencing the precautionary turn in legal discourse, this article shows that crisis discourse is indeed employed by the judiciary and that its logic made this precautionary approach to counterterrorism in the law possible. These events, now some 16 years ago, hold relevance for today’s continuing presence of crisis and crisis discourse.


Laura M. Henderson
Laura M. Henderson is a researcher at UGlobe, the Utrecht Centre for Global Challenges, at Utrecht University. She wrote this article as a Ph.D. candidate at the Vrije Universiteit Amsterdam.
Article

Access_open Afterword

Journal Erasmus Law Review, Issue 1 2018
Authors Stuart Kirsch
Author's information

Stuart Kirsch
Professor of Anthropology, University of Michigan.

    In May 2017, the Ogiek indigenous community of Kenya successfully challenged the denial of their land and associated rights before the African Court of Human and Peoples Rights (‘the Court’). In the first indigenous peoples’ rights case considered the Court, and by far the largest ever case it has had to consider, the Court found violations of Articles 1, 2, 8, 14, 17 (2) and (3), 21 and 22 of the African Charter on Human and Peoples’ Rights (‘the African Charter’). It therefore created a major legal precedent. In addition, the litigation itself and Ogiek’s participation in the various stages of the legal process provided a model for community engagement, through which the Ogiek were empowered to better understand and advocate for their rights. This article will first explain the history of the case and the Court’s findings, and then move on to examine in further detail methods employed to build the Ogiek’s capacity throughout, and even beyond, the litigation.


Lucy Claridge
Legal Director, Minority Rights Group International.

    Despite enjoying distinct and privileged constitutional statuses, the Indigenous minorities of Malaysia, namely, the natives of Sabah, natives of Sarawak and the Peninsular Malaysia Orang Asli continue to endure dispossession from their customary lands, territories and resources. In response, these groups have resorted to seeking justice in the domestic courts to some degree of success. Over the last two decades, the Malaysian judiciary has applied the constitutional provisions and developed the common law to recognise and protect Indigenous land and resource rights beyond the literal confines of the written law. This article focuses on the effectiveness of the Malaysian courts in delivering the preferred remedy of Indigenous communities for land and resource issues, specifically, the restitution or return of traditional areas to these communities. Despite the Courts’ recognition and to a limited extent, return of Indigenous lands and resources beyond that conferred upon by the executive and legislative arms of government, it is contended that the utilisation of the judicial process is a potentially slow, costly, incongruous and unpredictable process that may also not necessarily be free from the influence of the domestic political and policy debates surrounding the return of Indigenous lands, territories and resources.


Yogeswaran Subramaniam Ph.D.
Yogeswaran Subramaniam is an Advocate and Solicitor in Malaysia and holds a PhD from the University of New South Wales for his research on Orang Asli land rights. In addition to publishing extensively on Orang Asli land and resource rights, he has acted as legal counsel in a number of landmark indigenous land rights decisions in Malaysia.

Colin Nicholas
Colin Nicholas is the founder and coordinator of the Centre for Orang Asli Concerns (COAC). He received a PhD from the University of Malaya on the topic of Orang Asli: Politics, Development and Identity, and has authored several academic articles and books on Orang Asli issues. He has provided expert evidence in a number of leading Orang Asli cases. The law stated in this article is current as on 1 October 2017.

    This paper examines three Inter-American Court (IACtHR) cases on behalf of the Enxet-Sur and Sanapana claims for communal territory in Paraguay. I argue that while the adjudication of the cases was successful, the aftereffects of adjudication have produced new legal geographies that threaten to undermine the advances made by adjudication. Structured in five parts, the paper begins with an overview of the opportunities and challenges to Indigenous rights in Paraguay followed by a detailed discussion of the adjudication of the Yakye Axa, Sawhoyamaxa, and Xákmok Kásek cases. Next, I draw from extensive ethnographic research investigating these cases in Paraguay to consider how implementation actually takes place and with what effects on the three claimant communities. The paper encourages a discussion between geographers and legal scholars, suggesting that adjudication only leads to greater social justice if it is coupled with effective and meaningful implementation.


Joel E. Correia Ph.D.
Postdoctoral Research Associate in the Center for Latin American Studies at the University of Arizona.

Kristin Henrard Ph.D.
Kristin Henrard is professor minorities and fundamental rights in the department of International and EU law of the Erasmus School of Law in the Netherlands.

Jeremie Gilbert
Jeremie Gilbert is professor of Human Rights Law at the University of Roehampton in the UK.

    In the process of adjudication and litigation, indigenous peoples are usually facing a very complex and demanding process to prove their rights to their lands and ancestral territories. Courts and tribunals usually impose a very complex and onerous burden of proof on the indigenous plaintiffs to prove their rights over their ancestral territories. To prove their rights indigenous peoples often have to develop map of their territories to prove their economic, cultural, and spiritual connections to their territories. This article reflects on the role played by the mapping of indigenous territories in supporting indigenous peoples’ land claims. It analyses the importance of mapping within the process of litigation, but also its the impact beyond the courtroom.


Jeremie Gilbert PhD
Jeremie Gilbert is professor of Human Rights Law, University of Roehampton.

Ben Begbie-Clench
Ben Begdie-Clench is a consultant working with San communities in southern Africa.

    Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order.


Kirsten Anker Ph.D.
Associate Professor, McGill University Faculty of Law, Canada. Many thanks to the two anonymous reviewers for their frank and helpful feedback.

    The judgment of the Inter-American Court of Human Rights in the case of Kaliña and Lokono Peoples v. Suriname is noteworthy for a number of reasons. Particularly important is the Court’s repeated citation and incorporation of various provisions of the 2007 United Nations Declaration on the Rights of Indigenous Peoples into its interpretation of the American Convention on Human Rights. This aids in greater understanding of the normative value of the Declaration’s provisions, particularly when coupled with the dramatic increase in affirmations of that instrument by UN treaty bodies, Special Procedures and others. The Court’s analysis also adds detail and further content to the bare architecture of the Declaration’s general principles and further contributes to the crystallisation of the discrete, although still evolving, body of law upholding indigenous peoples’ rights. Uptake of the Court’s jurisprudence by domestic tribunals further contributes to this state of dynamic interplay between sources and different fields of law.


Fergus MacKay JD

    This article studies five category of malicious cyber activities against space assets in order to assess to what extent the existing international telecommunications law and space law address such activities and identify which rules should be pursued to effectively solve them. Five category of such activities include jamming, hijacking, hacking, spoofing, and robbing the control of telemetry, tracking and control (TT&C) of a satellite (a kind of anti-satellite (ASAT)). Actual incidents are selected for analysis. Those are: (i) jamming: Iranian deliberate harmful interference to the Eutelsat satellites solved in the ITU; (ii) hijacking: a terrorist organization, Liberation Tigers of Tamil Eelam (LTTE) hijacking US Intelsat-12 satellite solved by diplomatic negotiation between the Sri Lankan and US Governments using international telecommunications law developed by the ITU and individual national laws; (iii) hacking: alleged Chinese hacking of US NOAA’s information systems; (iv) spoofing: Iranian spoofing of the GPS signals to guide a US/CIA’s RQ-170 UAV into the Iranian territory; and (v) robbing the control of TT&C: alleged Chinese taking control of US remote sensing satellites including Landsat-7 and Terra AM-1. Concluding remarks include: 1) international telecommunications law developed in the ITU can adequately address harmful interference or hijacking as a result of malicious cyber activity as long as that is conducted by a non-State actor; 2) efforts have started in the ITU to strengthen its fact-finding ability in line with the TCBM measures taken in space activities. This orientation may be remembered as a beginning of the new stage that international space law and international telecommunications law would be merged into one field of law: 3) It remains unclear about the implications of an intangible damage occurred to a satellite when its TT&C is robbed of as a result of malicious cyber activity, while it is clear that such an action constitute the violation of the principles of respect for state sovereignty, national jurisdiction and non-intervention. Thus, for promoting peaceful uses of outer space, the elaboration of relevant Articles of the Outer Space Treaty is urgently needed to formulate clear conditions for national space activities.


Setsuko Aoki
Professor of Law, Keio University Law School, Japan, saoki@ls.keio.ac.jp.

    Since its inception, space law has been governed by principles and rules established by governments and primarily applicable to government activities. Today we are experiencing policy changes to encourage private sector initiatives to carry out government missions and to expand potential profit-making opportunities. The space treaties allow for nongovernmental activities in space but only under the auspices of a nation. Each nation approaches legal solutions in their own way. These variations in national law may create challenges for all space-faring nations. If there are no international agreements, they may create a more fragmented, unpredictable, and unsustainable environment for all participants, both governments and private companies in outer space.
    The fragmentation of international law is defined by the development of sets of rules pertaining to specific subject areas that may claim autonomy from principles of general international law. Those subject areas reflect the larger global issues that include the environment, energy, resource availability, migration, health, and the proliferation of weapons of mass destruction. Space law is unique and may be considered one of the fragmented areas of international law. The principles of the now 50-year old treaties have been formally acknowledged by all space-faring nations. New developments may threaten that.
    At issue are many areas of space law including liability, property rights, and environmental harm. Different on-orbit space activities such as satellite servicing, exploiting resources, and removing debris highlight the types of space activities with many similar legal concerns but which may result in different rules in different nations and even for different rules within a nation. New and growing legal tensions among space-faring nations will arise.
    Solutions to this problem are all suboptimal. Neither top-down oversight nor separate bottom-up rules or guidelines will suffice as stable, predictable, and long-lasting regimes that create a favorable legal environment for future public and private space exploration and use.


Henry R. Hertzfeld
Director and Research Professor, Space Policy Institute, George Washington University, Washington, DC; hhertzfeld@law.gwu.edu.
Article

Access_open Restorative justice: a framework for examining issues of discipline in schools serving diverse populations

Journal The International Journal of Restorative Justice, Issue 1 2018
Keywords Restorative justice in U.S. schools, school-based discipline, discipline gap, social justice
Authors Carrie Ann Woods and Martha Lue Stewart
AbstractAuthor's information

    The purpose of this article is to explore the literature on restorative justice (RJ) as employed in educational settings and its relationship to student achievement and to present it as a model for working with high-needs populations. While there is no single measure to determine ‘need’ amongst students, the reference in this article is to particularly vulnerable populations of students, due to racial, linguistic, academic or other differences. Information sources utilised in this study were chosen based on their relevance to the application and assessment of RJ programmes implemented with youth in school systems, with a particular focus on its relevance in the context of the United States. This article points at the history of RJ and how particularly impactful such programmes can be with this target group, given the aims and desired outcomes of this philosophy.


Carrie Ann Woods
Carrie Ann Woods is a Doctoral Student, National Urban Special Education Leadership Initiative, University of Central Florida, Orlando, USA. Contact author: carrie.woods@ucf.edu.

Martha Lue Stewart
Martha Lue Stewart is a Professor at the Department of Child, Family and Community Sciences, University of Central Florida, Orlando, USA.
Article

Normative References to Non-Legally Binding Instruments in National Space Laws

A Risk-Benefit Analysis in the Context of Public International and Domestic Law

Journal International Institute of Space Law, Issue 4 2018
Authors Alexander Soucek and Jenni Tapio
Author's information

Alexander Soucek
European Space Agency (ESA), The Netherlands, alexander.soucek@esa.int.

Jenni Tapio
Bird & Bird Attorneys, University of Helsinki, Finland, jenni.tapio@helsinki.fi.

    China’s first space station, Tiangong-1, returned to earth on 1 April 2018 after more than six years in outer space. This was not isolated and some of the previous return of space objects are Cosmos 854 in 1978, Skylab in 1979, Delta II second stage in 1997, MIR Space Station in 2001, Italian BeppoSax in 2003, US-193 in 2008 and ESA’s GOCE in 2013. In light of these events and its inevitably increasing frequencies, it is necessary to reflect on the international law governing the re-entry of space objects.
    In the current international legal framework, the state obligations cover the whole process of re-entry without obvious loopholes, preventative ex ante and responsible ex post. But the state practice is largely uneven and there are controversies and ambiguities over obligations to forewarn hazardous events and disclose information for facilitating damage control and cleanup operation; under what conditions can reentry objects be actively removed; and how to return the objects and compensate the damages. This requires adjustment and fine-tuning of some critical notions in the space treaties and other legal documents, particularly, how to apply victim-oriented and environment-friendly principles in space sector, the balance between launching states’ jurisdiction and control of space objects and the interest of other states, the definition and determination of damages and state responsibility for hazardous activities.


Xiaodan Wu
Law School, China Central University of Finance and Economics.

    International cooperation is the key to the strongest peace in the world, to really constructive relations and the political, economic, cultural and humanistic development among all countries, all peoples and all mankind. There is an “extraordinary danger of the current moment,” the Science and Security Board of the Bulletin of the Atomic Scientists said on January 25, 2018, when it decided to move the hand of the iconic Doomsday Clock to 2 minutes to midnight. The last time the symbolic Clock was this closing to midnight was in 1953, at the height of the First Cold War. (2) Now, 65 years later, we are in a Second Cold War, which propels a new and millionaire arms race into space, preparing a space war of inestimable consequences. The world community is “seriously concerned” about this concrete possibility, that can result in a limitless global collapse.
    The UN General Assembly Resolution 72-77, of December 7, 2017, makes an appeal “to all States Members, in particular those with major space capabilities, to contribute actively to preventing an arms race in outer space with a view to promoting and strengthening international cooperation in the exploration and use of outer space for peaceful purposes”. This resolution also “requests the Committee [The United Nations Committee on the Peaceful Uses of Outer Space – UNCOPUOS] to continue to consider, as a matter of priority, ways and means of maintaining outer space for peaceful purposes.” In its point of view, “the Committee should continue to consider the broader perspective of space security and associated matters that would be instrumental in ensuring the safe and responsible conduct of space activities, including ways to promote international, regional and inter regional cooperation to that end.” (3) As if that were not enough, we are facing an unprecedented climate crisis today. The mainstream media seek to conceal or minimize the fact. But this is part of the problem of the need to maximize international cooperation. Without it, the crisis will continue to spread and threaten the lives of millions of people around the world. In this way, can international space cooperation be carried out effectively “on an equitable and mutually acceptable basis,” as proposed the Declaration on International Cooperation (General Assembly Resolution 51/122, of December 13, 1996)? (4)
    Is it possible to ensure today “an equitable situation” on “a mutually acceptable basis” between developed and developing nations, whose distance increases more and more, mainly in military affairs? The present paper aims to discuss this and other similar issues.


José Monserrat Filho
Brazilian Association of Air and Space Law (SBDA); Brazilian Society for the Progress of Science (SBPC); International Institute of Space Law (IISL).
Article

Promoting Legislative Objectives Throughout Diverse Sub-National Jurisdictions

Journal European Journal of Law Reform, Issue 1 2018
Keywords devolution, informal jurisdiction, rule of law, disparate impacts, participatory problem-solving, intransitive law, legislative standardization
Authors Lorna Seitz
AbstractAuthor's information

    This article outlines an approach, derived from Ann and Robert Seidman’s Institutionalist Legislative Drafting Theory and Methodology (ILTAM), for drafting laws and developing implementing policies and programmes to realize legislative objectives and promote necessary behavioural change throughout a jurisdiction despite significant sub-jurisdictional socio-economic differences. ILTAM can serve as a powerful tool for catalysing the development of situationally appropriate programmes to initiate and sustain behavioural change in furtherance of legislative objectives. The article begins by discussing the movement towards legislative standardization, and its benefits and failings. It then introduces the concept of informal jurisdictions, and highlights modifications to ILTAM that improve the methodology’s efficacy in devising solutions that work in those jurisdictions. The article then describes the power of intransitive law as a mechanism for catalysing progress towards shared objectives in a manner that allows for localized approaches, promotes governmental responsiveness, brings innovation, and maximizes participatory governance. Lastly, it describes the importance that Ann and Robert Seidman placed on institutionalizing on-going monitoring, evaluation and learning processes; and describes how intransitive drafting techniques can focus implementation on motivating behavioural change while systematically identifying needed policy and law reforms in response to suboptimal legislative outcomes.


Lorna Seitz
The Legis Institute. Seitz earned her JD from Boston University (BU), where she served as Editor-in-Chief of Professor Seidman’s Legislative Clinics. After graduating, Seitz served as the Director of the BU/ICLAD Legislative Distance Drafting Program for several years, taught in the BU Legislative Clinics (and overseas) alongside Professor Seidman, and served as principal for the International Consortium for Law and Development (a non-profit co-founded by the Seidmans) from 2004-2014. Seitz co-founded The Legis Institute to realize the combined potential of ILTAM and 21st Century technology to overcome barriers to inclusive, responsive, evidence-based policy and law development and governance.
Showing 101 - 120 of 401 results
1 2 3 4 6 8 9 10 20 21
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.