This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities. |
Search result: 28 articles
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Positive obligations, sexual minorities, sexual orientation, European law, human rights |
Authors | Alina Tryfonidou |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Dehumanisation, International Human Rights Law, Positive State obligations, Framework Convention for the Protection of National Minorities, International Convention on the Elimination of all forms of Racial Discrimination |
Authors | Stephanie Eleanor Berry |
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International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration. |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | prejudice, soft paternalism, empathy, liberalism, employment discrimination, access to goods and services |
Authors | Ioanna Tourkochoriti |
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This article argues that it is legitimate for the state to practice soft paternalism towards changing hearts and minds in order to prevent behaviour that is discriminatory. Liberals accept that it is not legitimate for the state to intervene in order to change how people think because ideas and beliefs are wrong in themselves. It is legitimate for the state to intervene with the actions of a person only when there is a risk of harm to others and when there is a threat to social coexistence. Preventive action of the state is legitimate if we consider the immaterial and material harm that discrimination causes. It causes harm to the social standing of the person, psychological harm, economic and existential harm. All these harms threaten peaceful social coexistence. This article traces a theory of permissible government action. Research in the areas of behavioural psychology, neuroscience and social psychology indicates that it is possible to bring about a change in hearts and minds. Encouraging a person to adopt the perspective of the person who has experienced discrimination can lead to empathetic understanding. This, can lead a person to critically evaluate her prejudice. The paper argues that soft paternalism towards changing hearts and minds is legitimate in order to prevent harm to others. It attempts to legitimise state coercion in order to eliminate prejudice and broader social patterns of inequality and marginalisation. And it distinguishes between appropriate and non-appropriate avenues the state could pursue in order to eliminate prejudice. Policies towards eliminating prejudice should address the rational and the emotional faculties of a person. They should aim at using methods and techniques that focus on persuasion and reduce coercion. They should raise awareness of what prejudice is and how it works in order to facilitate well-informed voluntary decisions. The version of soft paternalism towards changing minds and attitudes defended in this article makes it consistent with liberalism. |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Roma, Travellers, positive obligations, segregation, culturally adequate accommodation |
Authors | Lilla Farkas and Theodoros Alexandridis |
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The article analyses the jurisprudence of international tribunals on the education and housing of Roma and Travellers to understand whether positive obligations can change the hearts and minds of the majority and promote minority identities. Case law on education deals with integration rather than cultural specificities, while in the context of housing it accommodates minority needs. Positive obligations have achieved a higher level of compliance in the latter context by requiring majorities to tolerate the minority way of life in overwhelmingly segregated settings. Conversely, little seems to have changed in education, where legal and institutional reform, as well as a shift in both majority and minority attitudes, would be necessary to dismantle social distance and generate mutual trust. The interlocking factors of accessibility, judicial activism, European politics, expectations of political allegiance and community resources explain jurisprudential developments. The weak justiciability of minority rights, the lack of resources internal to the community and dual identities among the Eastern Roma impede legal claims for culture-specific accommodation in education. Conversely, the protection of minority identity and community ties is of paramount importance in the housing context, subsumed under the right to private and family life. |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Human rights, positive state obligations, islamophobia, international supervisory mechanisms |
Authors | Kristin Henrard |
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Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This in turn triggers the human rights obligations of liberal democratic states, more particularly states’ positive obligations (informed by reasonability considerations) to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships. This article identifies and compares the fault lines in the practice of three international human rights supervisory mechanisms in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (European Convention on Human Rights) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The supervisory practice is analysed in two steps: The analysis of each international supervisory mechanism’s jurisprudence, in itself, is followed by the comparison of the fault lines. The latter comparison is structured around the two main strands of strategies that states could adopt in order to counter intolerance: On the one hand, the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other, countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights). Having regard to the respective strengths and weaknesses of the supervisory practice of these three international supervisory mechanisms, the article concludes with some overarching recommendations. |
Editorial |
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Journal | Erasmus Law Review, Issue 3 2020 |
Authors | Kristin Henrard |
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Article |
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Journal | Erasmus Law Review, Issue 2 2020 |
Keywords | company takeovers, mandatory offers, minority shareholders, equal treatment, acquisition procedure |
Authors | Paul Nkoane |
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A firm intention announcement must be made when the offeror is able and willing to acquire securities, and when a mandatory offer must be made. When the firm intention announcement is implemented, some sort of a contract is created. This rule has helped to determine the particular time the offeror should be liable to minorities. The question of when the offeror should bear the obligation to implement mandatory offers in aborted takeovers is thus no more problematic. Previously, the courts wrestled with this issue, but delivered what appears to be unsatisfactory decisions. This article will discuss the effect of a firm intention announcement and the responsibility that attends the making of that announcement. It intends to illustrate the extent of liability the offeror must bear in the event of a lapsed takeover, before and after the making of the firm intention announcement. The article examines the manner in which takeover rules can be enforced, and whether the current measures afford minorities proper protection. This brings to light the issue of equal treatment in takeovers and the fallacy thereof. A minor appraisal of the takeover rules in two jurisdictions in Europe (the United Kingdom and the Netherlands) is conducted to assess how equal treatment for minorities is promoted. Due to the difficulty minorities may experience in enforcing equal treatment in company takeovers, the article advocates for the alteration of the current South African takeover procedure for the promotion of minorities’ interests and for establishing rules that provide the offeror adequate information. |
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Interest Representation in BelgiumMapping the Size and Diversity of an Interest Group Population in a Multi-layered Neo-corporatist Polity |
Journal | Politics of the Low Countries, Issue Online First 2020 |
Keywords | interest groups, advocacy, access, advisory councils, media attention |
Authors | Evelien Willems, Jan Beyers and Frederik Heylen |
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This article assesses the size and diversity of Belgium’s interest group population by triangulating four data sources. Combining various sources allows us to describe which societal interests get mobilised, which interest organisations become politically active and who gains access to the policy process and obtains news media attention. Unique about the project is the systematic data collection, enabling us to compare interest representation at the national, Flemish and Francophone-Walloon government levels. We find that: (1) the national government level remains an important venue for interest groups, despite the continuous transfer of competences to the subnational and European levels, (2) neo-corporatist mobilisation patterns are a persistent feature of interest representation, despite substantial interest group diversity and (3) interest mobilisation substantially varies across government levels and political-administrative arenas. |
Article |
Plain LanguageA Promising Tool for Quality Legislation |
Journal | European Journal of Law Reform, Issue 4 2018 |
Keywords | plain language, clarity, precision, accessibility, interpretation |
Authors | Kally K.L. Lam LLB |
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The hypothesis of this article is that plain language drafting with innovative drafting techniques can improve the quality of legislation. Further to this, the article tries to prove that quality legislation can also make the law more accessible to its general audience. With regard to quality, the article assesses plain language drafting with innovative drafting techniques using Helen Xanthaki’s criteria of quality in legislation, i.e. that it should be clear, precise and unambiguous. With regard to accessibility, it is defined broadly as to include readability. I will first assess whether plain language drafting with innovative drafting techniques can meet the expectations of its general audience and second discuss whether legislation drafted in plain language with innovative techniques passes the usability tests. |
Article |
The Reliability of Evidence in Evidence-Based Legislation |
Journal | European Journal of Law Reform, Issue 1 2018 |
Keywords | evidence-based legislation, Institutional Legislative Theory and Methodology (ILTAM), reliable evidence, Professor Robert Seidman |
Authors | Sean J. Kealy and Alex Forney |
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As evidence-based legislation develops, and as technology puts more information at our fingertips, there should be a better understanding of what exactly constitutes reliable evidence. Robert and Ann Seidman devoted their professional careers to developing the evidence-based Institutional Legislative Theory and Methodology and teaching it to legislative drafters around the world. Although ILTAM was firmly grounded in – and driven by – evidence, the question becomes what evidence is reliable and a worthy input for the methodology. Further, how can the drafter avoid the misuses of evidence such as confirmation bias and naïve beliefs? We aim to give a guide for using evidence by offering examples of evidence-based legislation in practice and through a proposed hierarchy of evidence from most to least reliable: We hope that this hierarchy provides a starting point for discussion to refine and improve evidence-based legislation. |
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Journal | Erasmus Law Review, Issue 3 2017 |
Keywords | ECtHR, UNHRC, religious manifestations, religious minorities, empirical analysis |
Authors | Fabienne Bretscher |
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Confronted with cases of restrictions of the right to manifest religious beliefs of new religious minorities formed by recent migration movements, the ECtHR and the UNHRC seem to opt for different interpretations and applications of this right, as recent conflicting decisions show. Based on an empirical legal analysis of the two bodies’ decisions on individual complaints, this article finds that these conflicting decisions are part of a broader divergence: While the UNHRC functions as a protector of new minorities against States’ undue interference in their right to manifest their religion, the ECtHR leaves it up to States how to deal with religious diversity brought by new minorities. In addition, a quantitative analysis of the relevant case law showed that the ECtHR is much less likely to find a violation of the right to freedom of religion in cases brought by new religious minorities as opposed to old religious minorities. Although this could be a hint towards double standards, a closer look at the examined case law reveals that the numerical differences can be explained by the ECtHR’s weaker protection of religious manifestations in the public as opposed to the private sphere. Yet, this rule has an important exception: Conscientious objection to military service. By examining the development of the relevant case law, this article shows that this exception bases on a recent alteration of jurisprudence by the ECtHR and that there are similar prospects for change regarding other religious manifestations in the public sphere. |
Article |
Managing the EU Acquis |
Journal | European Journal of Law Reform, Issue 3 2016 |
Keywords | EU, legislation, accessibility, updating |
Authors | William Robinson |
AbstractAuthor's information |
EU legislation plays a key role in filling in the gaps in the framework created by the EU Treaties. The body of EU legislation known as the acquis has grown piecemeal over 60 years to a confused and confusing patchwork of over 100,000 pages. There is an urgent need for a more coherent approach to updating, condensing and revising that legislation to ensure that it is readily accessible. New mechanisms should be established for those tasks, or else the existing mechanisms should be enhanced and exploited to the full. |
Article |
Snaga Žene: Disrupting Discourses of Victimhood in Bosnia-Herzegovina |
Journal | International Journal of Conflict Engagement and Resolution, Issue 2 2016 |
Keywords | narrative, gender, conflict, violence, victimhood |
Authors | Jessica M. Smith |
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As the nature of global violence shifts and conflict becomes increasingly characterized by intrastate violence, theoretical underpinnings of violence and aggression based on Westphalian models have become insufficient. Contemporary warfare is no longer confined to acts of violence between states using large-scale weaponry where non-combatants are rarely at the front lines. Instead, small arms have allowed rebel groups to bring the front lines of conflict to villages, resulting in a much deadlier age of violence against civilians. This shift has led to an increase in attention to the impact of violent conflict on civilians, including a consideration of the gendered experiences of women, men, girls and boys. |
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Documentary FilmmakersBridging Practice and Scholarship in Peacebuilding |
Journal | International Journal of Conflict Engagement and Resolution, Issue 1 2016 |
Keywords | documentary, film, peacebuilding, narratives, storytelling |
Authors | Dana Townsend and Kuldeep Niraula |
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In settings characterized by violent conflict, documentary filmmakers serve as a conduit between local experiences and the broader public. Highlighting these experiences requires filmmakers to immerse themselves in a context, digest scholarly findings, interview local sources and organize information into an accessible storyline. Those who utilize this craft often draw from established research or collaborate with scholars to ensure the narrative resonates with people and represents verified events. At the same time, their films contribute to the practice of peacebuilding through a participatory process that focuses on storytelling and community healing. This article explores the dual role of documentary filmmakers by positioning them as potential bridge-builders between practice and scholarship in peacebuilding. Specifically, it looks at the way filmmakers navigate between these realms by countering hegemonic narratives, introducing marginalized voices, contextualizing conflict and sharing stories with a wide audience – while also reflecting on the way their own identities and viewpoints influence this process. |
Article |
Structure of Legislation: A Paradigm for Accessibility and Effectiveness |
Journal | European Journal of Law Reform, Issue 3 2015 |
Keywords | effectiveness of legislation, structure of legislation, accessibility of legislation, quality drafting, clarity |
Authors | Elohor Onoge |
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The aim of this article is to examine how the structure of legislation can nurture accessibility and effectiveness of legislation. |
Article |
Creating New Pathways to Justice Using Simple Artificial Intelligence and Online Dispute Resolution |
Journal | International Journal of Online Dispute Resolution, Issue 1 2015 |
Keywords | expert system, online dispute resolution, artificial intelligence, access to justice, legal information technology |
Authors | Darin Thompson |
AbstractAuthor's information |
Access to justice in can be improved significantly through implementation of simple artificial intelligence (AI) based expert systems deployed within a broader online dispute resolution (ODR) framework. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2015 |
Authors | Jasper Doomen and Mirjam van Schaik |
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In this article, we inquire the merits of criminalizing blasphemy. We argue that religious views do not warrant a separate treatment compared to nonreligious ones. In addition, freedom of speech must be balanced against the interest of those who may be aggrieved by blasphemous remarks. We conclude that penalizing blasphemy is undesirable. It is fortunate, in that light, that acts of blasphemy have recently been decriminalized in The Netherlands by removing blasphemy as an offense from the Criminal Code. Still, other provisions appear to leave enough room to reach the same result, making the removal a possibly virtually aesthetic change. In the international context, it would be regrettable for The Netherlands to forgo the opportunity to take a leading role. |
This article sets out to contribute to the special issue devoted to multi-disciplinary legal research by discussing first the limits of purely doctrinal legal research in relation to a particular topic and second the relevant considerations in devising research that (inter alia) draws on non-legal, auxiliary disciplines to ‘fill in’ and guide the legal framework. The topic concerned is the (analysis of the) fundamental rights of minorities. |
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Legislative Drafting in Plain Urdu Language for the Islamic Republic of PakistanA Question of Complex Intricacies |
Journal | European Journal of Law Reform, Issue 3 2014 |
Keywords | Urdu, Pakistan, multilingual jurisdictions, legislative drafting, plain language movement |
Authors | Mazhar Ilahi |
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The plain language movement (PLM) for the writing of laws calls for improving legislative clarity by drafting the laws in a clear, simple, and precise manner. However, the main purpose of this aspiration is to facilitate the ordinary legislative audience to understand the laws with the least effort. In this respect, turning the pages of recent history reveals that this movement for plain language statutes has mostly been debated and analysed in the context of English as a language of the legislative text. However, in some parts of the multilingual world like India and Pakistan, English is not understood by the ordinary population at a very large scale but is still used as a language of the legislative text. This disparity owes its genesis to different country-specific ethnolingual and political issues. In this context but without going into the details of these ethnolingual and political elements, this article aims to analyse the prospects of plain Urdu legislative language in the Islamic Republic of Pakistan by by analyzing (1) the possibility of producing a plain language version of the legislative text in Urdu and (2) the potential benefit that the ordinary people of Pakistan can get from such plain statutes in terms of the themes of the PLM. In answering these questions, the author concludes that neither (at present) is it possible to produce plain Urdu versions of the statute book in Pakistan nor is the population of Pakistan likely to avail any current advantage from the plain Urdu statutes and further that, for now, it is more appropriate to continue with the colonial heritage of English as the language of the legislative text. |
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Drafting Conventions, Templates and Legislative Precedents, and their Effects on the Drafting Process and the Drafter |
Journal | European Journal of Law Reform, Issue 4 2013 |
Keywords | drafting conventions, templates, legislative precedents, drafter’s skill, necessary tools for effective communication of language of legislation |
Authors | Agnes Quartey Papafio |
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The aim of this article is to explore whether drafting conventions, templates and legislative precedents contradict or complement the drafter’s style and if they complement the drafter’s style, the various ways in which the use of these tools achieves it. |