Search result: 658 articles

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Maria Lucia Cruz Correia
Maria Lucia Cruz Correia is an artist, activist and environmental researcher, Belgium. Contact author: mluciacruzcorreia@gmail.com.
Article

A maximalist approach of restorative justice to address environmental harms and crimes

Analysing the Brumadinho dam collapse in Brazil

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords environmental law, maximalist approach, restorative justice principles and concepts, decision-making process, sanctioning rules
Authors Carlos Frederico Da Silva
AbstractAuthor's information

    In this article, the author analyses court cases arising from the rupture of the mining tailings dam in the city of Brumadinho, Brazil, on 25 January 2019. In a civil lawsuit context, legal professionals recognised damage to people and the environment during hearings involving a judge, prosecutors, lawyers and corporate representatives. The centrality of the victims’ interests and the need for remedial measures prevailed in the agreements signed mainly to provide urgent relief and restore damage to the ecosystem. In the criminal lawsuit dealing with the same facts, there have not yet been acquittals, non-prosecution agreements or convictions. By employing a socio-legal approach to contrast different types of legal reasoning, this article explores the possibilities of restorative responses in civil proceedings and explains the lack of them in criminal justice. In highlighting some characteristics of punishment theories that hinder a possible restorative justice approach, the article offers a critique of a penal system mostly linked to argumentative competition rather than persuasive conflict resolution. The author argues that jurisprudence should address transdisciplinary concepts, such as responsive regulation, restorative efforts, proportionality and individualisation of punishment. The discussion can shed light on the decision-making process to allow environmental restorative justice responses to crimes.


Carlos Frederico Da Silva
Carlos Frederico Braga Da Silva is a PhD researcher associated to the Graduate School of Sociology at the Federal University of Minas Gerais, Brazil, and to the Canadian Chair of Legal Traditions and Penal Rationality, Faculty of Social Sciences, Department of Criminology, University of Ottawa, Canada. He also works as a state judge in Belo Horizonte, Minas Gerais, Brazil. Contact author: carlosfrebrasilva@gmail.com.

Brunilda Pali
Brunilda Pali is a Senior Researcher at the Leuven Institute of Criminology, KU Leuven, Belgium, and a Lecturer at the Department of Political Sciences, University of Amsterdam, the Netherlands.

Ivo Aertsen
Ivo Aertsen is Emeritus Professor of Criminology, Leuven Institute of Criminology, KU Leuven, Belgium. Contact author: Brunilda.pali@kuleuven.be.
Article

Access_open The ECHR and Private Intercountry Adoptions in Germany and the Netherlands: Lessons Learned from Campanelli and Paradiso v. Italy

Journal Family & Law, January 2021
Keywords Private intercountry adoptions, surrogacy, ECHR, UNCRC, the best interests of the child
Authors dr. E.C. Loibl
AbstractAuthor's information

    Within the past half century, a market in adoptable children has emerged. The imbalance between the demand for and the supply of adoptable children, combined with the large sums of Western money, incite greedy actors in poor countries to illegally obtain children for adoption. This renders intercountry adoption conducive to abuses. Private adoptions are particularly prone to abusive and commercial practices. Yet, although they violate both international and national law, German and Dutch family courts commonly recognize them. They argue that removing the child from the illegal adopters would not be compatible with the rights and best interests of the individual child concerned. In 2017, the ECtHR rendered a ground-breaking judgement in Campanelli and Paradiso v. Italy. In this case, the Court dealt with the question as to whether removing a child from the care of an Italian couple that entered into a surrogacy agreement with a Russian clinic, given that surrogacy is illegal in Italy, violated Article 8 ECHR. Contrary to previous case law, in which the ECtHR placed a strong emphasis on the best interests of the individual child concerned, the Court attached more weight to the need to prevent disorder and crime by putting an end to the illegal situation created by the Italian couple and by discouraging others from bypassing national laws. The article argues that considering the shifting focus of the ECtHR on the prevention of unlawful conduct and, thus, on the best interests of children in general, the German and Dutch courts’ failure to properly balance the different interests at stake in a private international adoption by mainly focusing on the individual rights and interests of the children is difficult to maintain.

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    In de afgelopen halve eeuw is er een markt voor adoptiekinderen ontstaan. De disbalans tussen de vraag naar en het aanbod van adoptiekinderen, in combinatie met grote sommen westers geld, zet hebzuchtige actoren in arme landen ertoe aan illegaal kinderen te verkrijgen voor adoptie. Dit maakt interlandelijke adoptie bevorderlijk voor misbruik. Particuliere adoptie is bijzonder vatbaar voor misbruik en commerciële praktijken. Ondanks het feit dat deze privé-adopties in strijd zijn met zowel internationaal als nationaal recht, worden ze door Duitse en Nederlandse familierechtbanken doorgaans wel erkend. Daartoe wordt aangevoerd dat het verwijderen van het kind van de illegale adoptanten niet verenigbaar is met de rechten en belangen van het individuele kind in kwestie. In 2017 heeft het EHRM een baanbrekende uitspraak gedaan in de zaak Campanelli en Paradiso t. Italië. In deze zaak behandelde het Hof de vraag of het verwijderen van een kind uit de zorg van een Italiaans echtpaar dat een draagmoederschapsovereenkomst met een Russische kliniek is aangegaan, in strijd is met artikel 8 EVRM, daarbij in ogenschouw genomen dat draagmoederschap in Italië illegaal is. In tegenstelling tot eerdere jurisprudentie, waarin het EHRM sterk de nadruk legde op de belangen van het individuele kind, hechtte het Hof meer gewicht aan de noodzaak om de openbare orde te bewaken en criminaliteit te voorkomen door een einde te maken aan de illegale situatie die door het Italiaanse echtpaar was gecreëerd door onder andere het omzeilen van nationale wetten. Het artikel stelt dat, gezien de verschuiving in de focus van het EHRM op het voorkomen van onwettig gedrag en dus op het belang van kinderen in het algemeen, de Duitse en Nederlandse rechtbanken, door met name te focussen op de individuele rechten en belangen van de kinderen, er niet in slagen om de verschillende belangen die op het spel staan ​​bij een particuliere internationale adoptie goed af te wegen.


dr. E.C. Loibl
Elvira Loibl is Assistant Professor Criminal Law and Criminology, Universiteit Maastricht.
Article

The Impact of VAAs on Vote Switching at the 2019 Belgian Legislative Elections: More Switchers, but Making Their Own Choices

Journal Politics of the Low Countries, Issue Online FIrst 2021
Keywords voting advice applications, vote switching, vote choice, elections and electoral behaviour, voters/citizens in Belgium, VAA
Authors David Talukder, Laura Uyttendaele, Isaïa Jennart e.a.
AbstractAuthor's information

    During electoral campaigns, the use of voting advice applications (VAAs) has become increasingly widespread. Consequently, scholars have examined both the patterns of usage and their effects on voting behaviour. However, existing studies lead to conflicting findings. In this article, we take a closer look at the effect of De Stemtest/Test électoral (a VAA developed by academics from the University of Louvain and the University of Antwerp, in partnership with Belgian media partners) on vote switching. More specifically, we divide this latter question into two sub-questions: (1) What is the impact of a (dis)confirming advice from the VAA on vote switching? (2) Do VAA users follow the voting advice provided by the VAA? Our study shows that receiving a disconfirming advice from the VAA increases the probability of users to switch their vote choice.


David Talukder
David Talukder is a PhD candidate at the Université libre de Bruxelles (ULB, Belgium). He works within the research project “Reforming Representative Democracy”. His main research interests are democratic innovations, political representation, and democratic reforms.

Laura Uyttendaele
Laura Uyttendaele is a PhD candidate at the University of Louvain (UC Louvain, Belgium). Her main research interests are Voting Advice Applications, Youth & politics, political attitudes and behaviours, and experimental methods.

Isaïa Jennart
Isaïa Jennart is a PhD candidate (Universiteit Antwerpen & VUB, Belgium) interested in public opinion, electoral campaigns, voting behaviour, Voting Advice Applications and political knowledge. He mainly studies citizens’ knowledge of parties’ issue positions.

Benoît Rihoux
Benoît Rihoux is full professor in political science at the University of Louvain (UC Louvain, Belgium). His research covers comparative methods (especially QCA) as well as diverse topics in comparative politics, political organizations and political behaviour.
Article

Access_open Correcting Wrongful Convictions in France

Has the Act of 2014 Opened the Door to Revision?

Journal Erasmus Law Review, Issue 4 2020
Keywords Final criminal conviction, revision procedure, grounds for revision, preparatory investigative measures, Cour de révision et de réexamen
Authors Katrien Verhesschen and Cyrille Fijnaut
AbstractAuthor's information

    The French ‘Code de procédure pénale’ provides the possibility to revise final criminal convictions. The Act of 2014 reformed the procedure for revision and introduced some important novelties. The first is that it reduced the different possible grounds for revision to one ground, which it intended to broaden. The remaining ground for revision is the existence of a new fact or an element unknown to the court at the time of the initial proceedings, of such a nature as to establish the convicted person’s innocence or to give rise to doubt about his guilt. The legislature intended judges to no longer require ‘serious doubt’. However, experts question whether judges will comply with this intention of the legislature. The second is the introduction of the possibility for the applicant to ask the public prosecutor to carry out the investigative measures that seem necessary to bring to light a new fact or an unknown element before filing a request for revision. The third is that the Act of 2014 created the ‘Cour de révision et de réexamen’, which is composed of eighteen judges of the different chambers of the ‘Cour de cassation’. This ‘Cour de révision et de réexamen’ is divided into a ‘commission d’instruction’, which acts as a filter and examines the admissibility of the requests for revision, and a ‘formation de jugement’, which decides on the substance of the requests. Practice will have to show whether these novelties indeed improved the accessibility of the revision procedure.


Katrien Verhesschen
Katrien Verhesschen is PhD candidate and teaching assistant at the Institute of Criminal Law KU Leuven.

Cyrille Fijnaut
Cyrille Fijnaut is Emeritus Professor of Criminal Law & Criminology at Erasmus University Rotterdam, KU Leuven and Tilburg University.

    This article focuses on the posting of workers in the aviation industry. The main problem is that it is not clear in which situations the Posting of Workers Directive should be applied to aircrew (i.e. cabin crew and pilots). The aviation sector is characterised by a very mobile workforce in which it is possible for employees to provide services from different countries in a very short timeframe. This makes it, to a certain extent, easier for employers to choose the applicable social legislation, which can lead to detrimental working conditions for their aircrew. This article looks into how the Posting of Workers Directive can prevent some air carriers from unilaterally determining the applicable social legislation and makes some suggestions to end unfair social competition in the sector. This article is based on a research report which the authors drafted in 2019 with funding from the European Commission (hereafter the ‘Report’)


Gautier Busschaert
Gautier Busschaert (PhD) is senior associate at the Brussels law firm Van Olmen & Wynant.

Pieter Pecinovsky
Pieter Pecinovsky (PhD) is counsel at the Brussels law firm Van Olmen & Wynant.
Pending Cases

Case C-502/20, Free Movement, Work and Residence Permit

TP – v – Institut des experts en automobiles, reference lodged by the Cour d’appel de Mons (Belgium) on 5 October 2020

Journal European Employment Law Cases, Issue 4 2020
Keywords Free Movement, Work and Residence Permit
Human Rights Practice Review

The Czech Republic

Journal East European Yearbook on Human Rights, Issue 1 2020
Authors Viktor Kundrák and Maroš Matiaško
Author's information

Viktor Kundrák
Viktor Kundrák works for the OSCE Office for Democratic Institutions and Human Rights (ODIHR) as a Hate Crime Officer. He is also a PhD candidate at Charles University in Prague. The views in this article are his own and do not necessarily represent those of ODIHR.

Maroš Matiaško
Maroš Matiaško is a PhD candidate at Palacky University and Essex University. He is a chair of the Forum for Human Rights (NGO based in Prague) and human rights attorney at law.
Article

Beizaras and Levickas v. Lithuania

Recognizing Individual Harm Caused by Cyber Hate?

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords hate speech, verbal hate crime, cyber hate, effective investigation, homophobia
Authors Viktor Kundrák
AbstractAuthor's information

    The issue of online hatred or cyber hate is at the heart of heated debates over possible limitations of online discussions, namely in the context of social media. There is freedom of expression and the value of the internet in and of itself on the one hand, and the need to protect the rights of victims, to address intolerance and racism, as well as the overarching values of equality of all in dignity and rights, on the other. Criminalizing some (forms of) expressions seems to be problematic but, many would agree, under certain circumstances, a necessary or even unavoidable solution. However, while the Court has long ago declared as unacceptable bias-motivated violence and direct threats, which under Articles 2, 3 and 8 in combination with Article 14 of the ECHR, activate the positive obligation of states to effectively investigate hate crimes, the case of Beizaras and Levickas v. Lithuania presented the first opportunity for the Court to extend such an obligation to the phenomenon of online verbal hate crime. This article will first address the concepts of hate speech and hate crime, including their intersection and, through the lens of pre-existing case law, identify the key messages for both national courts and practitioners. On the margins, the author will also discuss the issue of harm caused by verbal hate crime and the need to understand and recognize its gravity.


Viktor Kundrák
Viktor Kundrák has worked for the OSCE Office for Democratic Institutions and Human Rights (ODIHR) as a Hate Crime Officer since 2018. He has been responsible for ODIHR’s hate crime reporting, trained police, prosecutors and judges, and provided legislative and policy support at the national level. He is also a PhD candidate at Charles University in Prague. The views in this article are his own and do not necessarily represent those of ODIHR. Some of the opinions are based on an article published in Czech earlier this year (see V. Kundrák & M. Hanych, ‘Beizaras and Levickas v. Lithuania (Verbal Hate Crime on Social Network and Discriminatory Investigation)’, The Overview of the Judgments of the European Court of Human Rights, Vol. 3, 2020.
Article

Access_open States of Emergency

Analysing Global Use of Emergency Powers in Response to COVID-19

Journal European Journal of Law Reform, Issue 4 2020
Keywords coronavirus, emergency law, emergency powers, autocratization, democratic deconsolidation, state of emergency, rule of law, transparency, accountability, legislative scrutiny
Authors Joelle Grogan
AbstractAuthor's information

    The measures taken in response to the coronavirus pandemic have been among the most restrictive in contemporary history, and have raised concerns from the perspective of democracy, human rights, and the rule of law. Building on a study of the legal measures taken in response to pandemic in 74 countries, this article considers the central question of the use of power during an emergency: is it better or worse for democracy and the rule of law to declare an emergency or, instead, to rely on ordinary powers and legislative frameworks? The article then considers whether the use of powers (ordinary or emergency) in response to the pandemic emergency has ultimately been a cause, or catalyst of, further democratic deconsolidation. It concludes on a note of optimism: an emerging best practice of governmental response reliant on public trust bolstered by rationalized and transparent decision-making and the capacity to adapt, change and reform measures and policies.


Joelle Grogan
Dr. Joelle Grogan is Senior Lecturer in Law, Middlesex University London.
Article

Emergency Measures in Response to the Coronavirus Crisis and Parliamentary Oversight in the EU Member States

Journal European Journal of Law Reform, Issue 4 2020
Keywords states of emergency, parliamentary oversight, health crisis, Covid-19, European Union Member States
Authors Maria Diaz Crego and Silvia Kotanidis
AbstractAuthor's information

    The Covid-19 pandemic has become a true stress test for the legal systems of the worst hit countries. Faced with a health crisis situation, many national governments have become the protagonists in the adoption of difficult measures severely restricting their citizens fundamental rights to the detriment of the powers usually entrusted to the national parliaments. This article examines the normative response of the 27 European Union Member States during the “first wave” of the Covid-19 pandemic, a period that runs from the declaration of a pandemic (March 2020) to mid-June 2020. The intention of the authors was to describe the legal and constitutional mechanisms activated in order to contain the pandemic, focusing on the role of national parliaments in the management of the crisis. This article explores also the degree to which national parliaments have been involved and could exercise parliamentary oversight over the normative measures used by the executive to contain the pandemic in the EU-27.


Maria Diaz Crego
Maria Diaza Crego is a Policy Analyst, European Parliament Research Service, European Parliament.

Silvia Kotanidis
Silvia Kotanidis is a Policy Analyst, European Parliament Research Service, European Parliament. The European Parliamentary Research Service (EPRS) is the internal research service and think tank of the European Parliament. This research paper derives from a paper originally published on 4 December 2020 by the EPRS as background material to assist Members and staff of the European Parliament in their parliamentary work. The content of the document is the sole responsibility of its authors and any opinions expressed therein should not be taken to represent an official position of the European Parliament.
Article

Governments as Covid-19 Lawmakers in France, Italy and Spain

Continuity or Discontinuity

Journal European Journal of Law Reform, Issue 4 2020
Keywords Covid-19, emergency legislation, executive lawmaking, parliaments, decree-laws and ordinances
Authors Elena Griglio
AbstractAuthor's information

    Executive dominance in Covid-19 lawmaking has been a major trend worldwide. Governments have leveraged emergency prerogatives to boost their legislative powers, often sidelining the role of parliaments. The impact of executive lawmaking on fundamental liberties has been unprecedented. However, government’s capacity to exercise full legislative powers is not absolutely new to many European countries.
    This trend is analysed in the article comparing practices in the pandemic and in normal times, not specifically related to a state of emergency. To this end, three countries have been selected because of their constitutional clauses allotting lawmaking powers to the government even outside of emergency situations. This refers to the decree-laws in Italy and Spain and the ordonnances in France. The question addressed is whether there are relevant differences in the use made of these mechanisms during the pandemic.
    The results of this comparative analysis demonstrate that there is much continuity in the executive’s reliance on these mechanisms. However, discontinuity may be detected on the ground of the exceptional impact produced on constitutional rights and on the substantive values that legislation should protect. Therefore, from the perspective of the rollback of the emergency legislation, the role of parliaments, based on the core difference in the democratic status between lawmaking and legislation, turns out to be crucial.


Elena Griglio
Elena Griglio is Senior Parliamentary Official of the Italian Senate and Adjunct Professor at LUISS University, Rome.
Article

Patience, Ladies

Gender-Sensitive Parliamentary Responses in a Time of Crisis

Journal European Journal of Law Reform, Issue 4 2020
Keywords gender sensitivity, parliament, responsiveness, COVID-19, democracy, women
Authors Sonia Palmieri and Sarah Childs
AbstractAuthor's information

    In early 2020, in the face of the Covid-19 pandemic, numerous parliaments played their rightful democratic role by following the advice of health and economic experts and swiftly passing emergency legislation and relief packages. This was, in many countries, an attempt to reach an equilibrium between saving lives and saving economic livelihoods, on the understanding that both were in serious jeopardy. In the face of public health measures many parliaments also found themselves having to reform their own rules, procedures and practices. In both cases – policy interventions and institutional redesign – it appears that parliamentary responses to the Covid-19 situation were less commonly based on the advice of gender experts or informed by considerations of gender inequalities. Few, if any, emergency packages were designed following a systematic consideration of existing, deeply entrenched gender inequalities, despite continuous public analysis and commentary about the disproportionate gender impacts of the pandemic and the resulting lockdowns; and no parliaments instituted (temporary) rule changes that prioritized the voices of women parliamentarians or constituents. In this article, which draws on our work drafting the UN Women Covid-19 Parliamentary Primer & Checklist, we revisit the democratic case for gender-sensitive parliaments, highlighting their particular relevance to the 2020 pandemic. We introduce our model for gender-sensitive crisis responses across four key stages of the parliamentary process presented in the Primer – representation, deliberation, legislation and scrutiny – and offer an initial assessment of what transpired in the world’s parliaments based on an IPU survey. We suggest that if parliaments are to be gender-sensitive institutions in times of crisis, they must not only change how they do politics but also develop and sustain a robust political culture that values gender equality and an ethic of caring that supports new rules, procedures and practices that better redress institutional gender deficiencies.


Sonia Palmieri
Sonia Palmieri, Australian National University.

Sarah Childs
Sarah Childs, Royal Holloway, University of London.
Article

Access_open Chosen Blindness or a Revelation of the Truth?

A New Procedure for Revision in Belgium

Journal Erasmus Law Review, Issue 4 2020
Keywords final criminal conviction, revision procedure, grounds for revision, Court of Cassation, Commission for revision in criminal matters
Authors Katrien Verhesschen and Cyrille Fijnaut
AbstractAuthor's information

    The Belgian Code of criminal procedure provides the possibility to revise final criminal convictions. This procedure had remained more or less untouched for 124 years, but was finally reformed by the Act of 2018, after criticism was voiced in legal doctrine concerning its narrow scope and possible appearances of partiality and prejudice. The Act of 2018 therefore broadened the third ground for revision, the so-called novum, and defined it as an element that was unknown to the judge during the initial proceedings and impossible for the convicted person to demonstrate at that time and that, alone or combined with evidence that was gathered earlier, seems incompatible with the conviction, thus creating a strong suspicion that, if it had been known, it would have led to a more favourable outcome. Thereby, this ground for revision is no longer limited to factual circumstances, but also includes changed appreciations by experts. To counter appearances of partiality and prejudice, the Act of 2018 created the Commission for revision in criminal matters, a multidisciplinary body that has to give non-binding advice to the Court of Cassation on the presence of a novum. However, the legislature also introduced new hurdles on the path to revision, such as the requirement for the applicant to add pieces that demonstrate the ground for revision in order for his or her request to be admissible. For that reason, the application in practice will have to demonstrate whether the Act of 2018 made the revision procedure more accessible in reality.


Katrien Verhesschen
Katrien Verhesschen is a PhD candidate and teaching assistant at the Institute of Criminal Law KU Leuven.

Cyrille Fijnaut
Cyrille Fijnaut is Emeritus Professor of Criminal Law & Criminology at Erasmus University Rotterdam, KU Leuven and Tilburg University.
Article

Access_open Exoneration in Sweden

Is It Not about Time to Reform the Swedish Model?

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, extraordinary legal remedy, exoneration, exoneration in Sweden
Authors Dennis Martinsson
AbstractAuthor's information

    This article reviews exoneration in Sweden, with a focus on the procedure of applying for exoneration. First, it highlights some core features of Swedish criminal procedural law, necessary to understand exoneration in the Swedish context. Secondly, it outlines the possibilities in Swedish law to apply for exoneration, both in favour of a convicted person and to the disadvantage of a previously acquitted defendant. Thirdly, it identifies some challenges with the current Swedish model of administering applications for exoneration. Fourthly, it argues that the current system should be reformed by introducing into Swedish law a review committee that administers applications for exoneration.


Dennis Martinsson
Dennis Martinsson is Assistant Professor in the Department of Law of Stockholm University in Sweden.
Article

Access_open A European Approach to Revision in Criminal Matters?

Journal Erasmus Law Review, Issue 4 2020
Authors Joost Nan, Nina Holvast and Sjarai Lestrade
Author's information

Joost Nan
Joost Nan is Associate Professor at the Erasmus University Rotterdam.

Nina Holvast
Nina Holvast is Assistant Professor at the Erasmus Universiteit Rotterdam.

Sjarai Lestrade
Sjarai Lestrade is Assistant Professor at the Radboud University Nijmegen.

    States apply different material conditions to attract or restrict residence of certain types of migrants. But states can also make use of time as an instrument to design more welcoming or more restrictive policies. States can apply faster application procedures for desired migrants. Furthermore, time can be used in a more favourable way to attract desired migrants in regard to duration of residence, access to a form of permanent residence and protection against loss of residence. This contribution makes an analysis of how time is used as an instrument in shaping migration policy by the European Union (EU) legislator in the context of making migration more or less attractive. This analysis shows that two groups are treated more favourably in regard to the use of time in several aspects: EU citizens and economic- and knowledge-related third-country nationals. However, when it comes to the acquisition of permanent residence after a certain period of time, the welcoming policy towards economic- and knowledge-related migrants is no longer obvious.


Gerrie Lodder
Gerrie Lodder is lecturer and researcher at the Europa Institute of Leiden University.
Article

Access_open The Potential of Positive Obligations Against Romaphobic Attitudes and in the Development of ‘Roma Pride’

Journal Erasmus Law Review, Issue 3 2020
Keywords Roma, Travellers, positive obligations, segregation, culturally adequate accommodation
Authors Lilla Farkas and Theodoros Alexandridis
AbstractAuthor's information

    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.


Lilla Farkas
Lilla Farkas is a practising lawyer in Hungary and recently earned a PhD from the European University Institute entitled ‘Mobilising for racial equality in Europe: Roma rights and transnational justice’. She is the race ground coordinator of the European Union’s Network of Legal Experts in Gender Equality and Non-discrimination.

Theodoros Alexandridis
Theodoros Alexandridis is a practicing lawyer in Greece.
Article

Access_open State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM

Journal Erasmus Law Review, Issue 3 2020
Keywords Human rights, positive state obligations, islamophobia, international supervisory mechanisms
Authors Kristin Henrard
AbstractAuthor's information

    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.


Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
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