Search result: 1513 articles

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Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Article

The Role of the Seat in Smart Contract Disputes

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords smart contracts, international commercial arbitration, blockchain technology, online arbitration
Authors Diana Itzel Santana Galindo
AbstractAuthor's information

    Over the past few decades, international commercial arbitration has experienced major developments in various fields. A major recent development that will spread widely in the years to come relates to technology and the necessity of international commercial arbitration to adapt to the new needs of the market. The path of technological development in commerce is determined by forces other than the needs of legal practitioners. Moreover, the lack of real connection to a sole place, in disputes where the multi-parties have not selected the seat, can create serious obstacles for the arbitral proceedings in blockchain technology disputes. In this regard, smart contracts, however, appear to have identifiable parties with an identified physical point of connection that ultimately can be adapted to the existing place of the arbitration theory within the international arbitration legal framework.


Diana Itzel Santana Galindo
LL.M. graduate in Comparative and International Dispute Resolution at Queen Mary University of London. Legal internship experiences at the Korean Commercial Arbitration Board (KCAB International), Beijing Arbitration Commission (BAC/BIAC), and the Hong Kong International Arbitration Centre (HKIAC).
Article

Online Dispute Resolution in a Traditional Justice System

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords ODR, traditional justice system, insecure areas, Afghanistan
Authors Fathudin Yazdani
AbstractAuthor's information

    This article examines the applicability of Online Dispute Resolution (ODR) in Afghanistan. It evaluates whether ODR can resolve disputes in a traditional justice system, like Jirga, where the formal justice system is weak. This analysis questions whether ODR can complement the traditional jurisdiction system, where the public relies on customary practices to solve disputes. Further, the analysis focuses on the applicability of ODR in insecure areas, where access to formal judicial processes is limited. The findings from this study suggest the development of effective dispute resolution mechanisms in Afghanistan, mainly using ODR.


Fathudin Yazdani
Yazdani Fathudin completed his Post Graduation in Master of Science in Law (MSL) from The University of The Pacific McGeorge School of Law in 2020. He served as a legal advisor and assistant to the deputy minister ministry of interior in Afghanistan. Also, he worked as investigator and security associate in the United Nation Offices for Project Services (UNOPS) in Afghanistan.
Article

Introduction: Parties at the Grassroots

Local Party Branches in the Low Countries

Journal Politics of the Low Countries, Issue 2 2020
Authors Bram Wauters, Simon Otjes and Emilie van Haute
Author's information

Bram Wauters
Bram Wauters is Associate Professor in the Department of Political Sciences of Ghent University, where he leads the research group GASPAR. His research interests include political representation, elections and political parties, with specific attention for diversity. He has recently published on these topics in journals such as Party Politics, Political Studies, Politics & Gender and Political Research Quarterly. He is co-editor (with Knut Heidar) of ‘Do parties still represent?’ (Routledge, 2019).

Simon Otjes
Simon Otjes is Assistant Professor of Dutch Politics at Leiden University and researcher at the Documentation Centre Dutch Political Parties of Groningen University. His research focuses on political parties, parliaments and public opinion. His research has appeared in various journals, including American Journal of Political Science and European Journal of Political Research.

Emilie van Haute
Emilie van Haute is Chair of the Department of Political Science at the Université libre de Bruxelles (ULB) and researcher at the Centre d’étude de la vie politique (Cevipol). Her research interests focus on party membership, intra-party dynamics, elections and voting behaviour. Her research has appeared in West European Politics, Party Politics, Electoral Studies, Political Studies or European Political Science. She is co-editor of Acta Politica.
Article

Between Party Democracy and Citizen Democracy

Explaining Attitudes of Flemish Local Chairs Towards Democratic Innovations

Journal Politics of the Low Countries, Issue 2 2020
Keywords democratic innovations, citizen participation, local politics, Flanders, Belgium
Authors Didier Caluwaerts, Anna Kern, Min Reuchamps e.a.
AbstractAuthor's information

    As a response to the perceived legitimacy crisis that threatens modern democracies, local government has increasingly become a laboratory for democratic renewal and citizen participation. This article studies whether and why local party chairs support democratic innovations fostering more citizen participation. More specifically, we analyse the relative weight of ideas, interests and institutions in explaining their support for citizen-centred democracy. Based on the Belgian Local Chairs Survey in 2018 (albeit restricting our analysis to Flanders), the central finding is that ideas matter more than interests and institutions. Ideology is alive and kicking with regard to democratic innovation, with socialist and ecologist parties and populist parties being most supportive of participatory arrangements. By contrast, interests and institutions play, at this stage, a minor role in explaining support for participatory innovations.


Didier Caluwaerts
Didier Caluwaerts is Assistant Professor of Political Science at the Vrije Universiteit Brussel. His research and teaching deal with Belgian and comparative politics and democratic governance in deeply divided societies. His work has been published in various journals, including European Political Science Review, West European Politics, the Journal of Legislative Studies and Acta Politica.

Anna Kern
Anna Kern is Assistant Professor at research group GASPAR at the Department of Political Science of Ghent University. Her main research interests include political participation, political equality and political legitimacy. Her work has been published in international peer-reviewed journals such as West European Politics, Local Government Studies, Social Science Research and Political Behavior.

Min Reuchamps
Min Reuchamps is Professor of Political science at the Université catholique de Louvain (UCLouvain). His teaching and research interests are federalism and multilevel governance, democracy and its different dimensions, relations between language(s) and politics and, in particular, the role of metaphors, as well as participatory and deliberative methods.

Tony Valcke
Tony Valcke is Associate Professor at the Faculty of Political and Social Sciences of Ghent University. He is a member of the Centre for Local Politics (CLP) and coordinator of the Teacher Training Department. His research, publications and educational activities focus on elections and democratic participation/innovation, citizenship (education), (the history of) political institutions and (local) government reform, political elites and leadership.
Article

Access_open Recourse to Mediation in Times of Crisis

Is Business Ripe for a New Approach That Saves Time and Preserves Relationships, Also in the Field of Competition Law?

Journal Corporate Mediation Journal, Issue 1 2020
Keywords cross-border mediation, crises, Covid-19
Authors Pierre Kirch
AbstractAuthor's information

    The purpose of this article is to share some practical reflections on cross-border mediation and its application to Private Competition Disputes in Europe, at this time of crisis. The outbreak of the COVID-19 pandemic has led to a rethinking of methods of dispute resolution, everywhere. In Europe, whether before the European Union courts in Luxembourg or the civil and commercial courts in the Member States, judicial procedures are at a standstill at the time of writing (mid-2020). Once the courts get going again, it will probably take years to get the judicial system back in good working order. It may be necessary to take shortcuts to get the system back in shape, such as cancellation of hearings, recourse to summary forms of justice, etc. That is not what the parties bargained for at the outset of their judicial procedure.


Pierre Kirch
Avocat à la Cour (Paris & Brussels Bars), Partner, Paul Hastings (Europe) LLP, mediator certified by the Centre de Médiation et d’Arbitrage de Paris (CMAP, Paris) and the Center for Effective Dispute Resolution (CEDR, London).
Article

Social Impact Assessment and Mediation

Journal Corporate Mediation Journal, Issue 1 2020
Keywords Social impact, Business to Community mediation
Authors Eelco De Groot
AbstractAuthor's information

    A Social Impact Assessment is often a formal requirement to determine and prevent social risks at greenfield development of complex infrastructural projects. This article discusses the background and building blocks with the different tiers of Business to Community mediation; a neutral, facilitated, dialogue and information sharing, negotiation, joint fact-finding and formal mediation.


Eelco De Groot
Eelco de Groot is an advisor at Social License and senior lecturer Social Risk Management at the TU Delft.

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

Access_open African Union and the Politics of Selective Prosecutions at the International Criminal Court

Journal African Journal of International Criminal Justice, Issue 1 2020
Keywords African Union (AU), United Nations Security Council (UNSC), International Criminal Court (ICC), immunity, impunity
Authors Dr. Fabrice Tambe Endoh PhD
AbstractAuthor's information

    The African Union (AU) claims that the International Criminal Court (ICC) is selective against African leaders. The issue therefore arises concerning the validity of the allegations of selectivity. Partly because of such concerns, African Heads of States adopted the Malabo Protocol during their annual summit held in June 2014. Article 46A bis of the Protocol provides immunity for sitting Heads of States. This provision contradicts Article 27 of the Rome Statute and, consequently, arguably reverses the progress made so far in international criminal law by giving priority to immunity in the face of impunity. This article considers the validity of some of the allegations of selective application of criminal sanctions by the ICC and the likely consequence of the Malabo Protocol for regional and international criminal justice. The article argues that the Malabo Protocol should not be ratified by African states until the shield of immunity granted to sitting Heads of States is lifted to better advance the interests of justice for the victims of international crimes in Africa. In addition, the complementarity clause stated in the Malabo Protocol should have a nexus with the ICC such that the Court would be allowed to prosecute the perpetrators of international crimes in circumstances where the African Court of Justice and Human Rights (ACJHR) prove reluctant to do so.


Dr. Fabrice Tambe Endoh PhD
Dr. Fabrice Tambe Endoh holds a PhD in International Criminal Law from the North-West University, South-Africa.
Article

The ICC or the ACC

Defining the Future of the Immunities of African State Officials

Journal African Journal of International Criminal Justice, Issue 1 2020
Keywords ICC, ACC, immunities of African state officials, customary international law rules on immunities, Article 46A bis of the 2014 Malabo Protocol
Authors Aghem Hanson Ekori LLM, LLB
AbstractAuthor's information

    The International Criminal Court (ICC), whose treaty came into force about 18 years ago, was highly celebrated at the time of its creation in 1998 by many African states, led by the African Union (AU), even though it does not recognize the immunities of state officials before its jurisdiction. Conversely, the African Criminal Court (ACC), which was established in 2014 through a Protocol by the AU, recognizes the personal immunities of serving African state officials before its jurisdiction. Accordingly, this article argues that both Article 46A bis of the Malabo Protocol and Article 27 of the Rome Statute are neither inconsistent nor violative of the customary international law rules on the immunities of state officials. It further suggests that the immunity provision in Article 46A bis may be an affront to justice to the people of Africa as long as the state officials are in office despite its seeming consistency with customary international law rule. Finally, in exploring the future of the immunities of African state officials, the article will examine the possibility of blending the jurisdictions of both the ICC and the ACC through the complementarity principle since both courts are aimed at ending impunity for international crimes.


Aghem Hanson Ekori LLM, LLB
Doctoral candidate at UNISA, 2020, LLM, UNISA, LLB, University of Dschang, Cameroon.
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.
Article

Access_open Age Barriers in Healthcare

Journal Erasmus Law Review, Issue 1 2020
Keywords age discrimination, age equality, health care
Authors Rachel Horton
AbstractAuthor's information

    Age limits, minimum and maximum, and both explicit and ‘covert’, are still used in the National Health Service to determine access to a range of health interventions, including infertility services and cancer screening and treatment. Evidence suggests that chronological age is used as a proxy for a host of characteristics in determining access to healthcare: as a proxy for the capacity of an individual to benefit from an intervention; for the type of harm that may result from an intervention; for the likelihood of such benefit or harm occurring; and, in some cases, for other indicators used to determine what may be in the patient’s interest. Age is used as a proxy in this way in making decisions about both individual patients and wider populations; it may be used where no better ‘marker’ for the relevant characteristic exists or – for reasons including cost, practicality or fairness – in preference to other available markers. This article reviews the justifications for using age in this way in the context of the existing legal framework on age discrimination in the provision of public services.


Rachel Horton
Lecturer University of Reading.
Article

Access_open Giving Children a Voice in Court?

Age Boundaries for Involvement of Children in Civil Proceedings and the Relevance of Neuropsychological Insights

Journal Erasmus Law Review, Issue 1 2020
Keywords age boundaries, right to be heard, child’s autonomy, civil proceedings, neuropsychology
Authors Mariëlle Bruning and Jiska Peper
AbstractAuthor's information

    In the last decade neuropsychological insights have gained influence with regard to age boundaries in legal procedures, however, in Dutch civil law no such influence can be distinguished. Recently, voices have been raised to improve children’s legal position in civil law: to reflect upon the minimum age limit of twelve years for children to be invited to be heard in court and the need for children to have a stronger procedural position.
    In this article, first the current legal position of children in Dutch law and practice will be analysed. Second, development of psychological constructs relevant for family law will be discussed in relation to underlying brain developmental processes and contextual effects. These constructs encompass cognitive capacity, autonomy, stress responsiveness and (peer) pressure.
    From the first part it becomes clear that in Dutch family law, there is a tortuous jungle of age limits, exceptions and limitations regarding children’s procedural rights. Until recently, the Dutch government has been reluctant to improve the child’s procedural position in family law. Over the last two years, however, there has been an inclination towards further reflecting on improvements to the child’s procedural rights, which, from a children’s rights perspective, is an important step forward. Relevant neuropsychological insights support improvements for a better realisation of the child’s right to be heard, such as hearing children younger than twelve years of age in civil court proceedings.


Mariëlle Bruning
Mariëlle Bruning is Professor of Child Law at Leiden Law Faculty, Leiden University.

Jiska Peper
Jiska Peper is Assistant professor in the Developmental and Educational Psychology unit of the Institute of Psychology at Leiden University.
Article

Access_open Safeguarding the Dynamic Legal Position of Children: A Matter of Age Limits?

Reflections on the Fundamental Principles and Practical Application of Age Limits in Light of International Children’s Rights Law

Journal Erasmus Law Review, Issue 1 2020
Keywords age limits, dynamic legal position, children’s rights, maturity, evolving capacities
Authors Stephanie Rap, Eva Schmidt and Ton Liefaard
AbstractAuthor's information

    In this article a critical reflection upon age limits applied in the law is provided, in light of the tension that exists in international children’s rights law between the protection of children and the recognition of their evolving autonomy. The main research question that will be addressed is to what extent the use of (certain) age limits is justified under international children’s rights law. The complexity of applying open norms and theoretically underdeveloped concepts as laid down in the UN Convention on the Rights of the Child, related to the development and evolving capacities of children as rights holders, will be demonstrated. The UN Committee on the Rights of the Child struggles to provide comprehensive guidance to states regarding the manner in which the dynamic legal position of children should be applied in practice. The inconsistent application of age limits that govern the involvement of children in judicial procedures provides states leeway in granting children autonomy, potentially leading to the establishment of age limits based on inappropriate – practically, politically or ideologically motivated – grounds.


Stephanie Rap
Stephanie Rap is assistant professor in children’s rights at the Department of Child Law, Leiden Law School, the Netherlands.

Eva Schmidt
Eva Schmidt is PhD candidate at the Department of Child Law, Leiden Law School, the Netherlands.

Ton Liefaard
Ton Liefaard is Vice-Dean of Leiden Law School and holds the UNICEF Chair in Children’s Rights at Leiden University, Leiden Law School, the Netherlands.
Article

Access_open Is the CJEU Discriminating in Age Discrimination Cases?

Journal Erasmus Law Review, Issue 1 2020
Keywords age discrimination, old people, young people, complete life view, fair innings argument
Authors Beryl ter Haar
AbstractAuthor's information

    Claims have been made that the Court of Justice of the European Union (CJEU) is more lenient in accepting age discriminating measures affecting older people than in those affecting younger people. This claim is scrutinised in this article, first, by making a quantitative analysis of the outcomes of the CJEU’s case law on age discrimination cases, followed by a qualitative analysis of the line of reasoning of the CJEU in these cases and concluding with an evaluation of the Court’s reasoning against three theoretical approaches that set the context for the assessment of the justifications of age discrimination: complete life view, fair innings argument and typical anti-discrimination approach. The analysis shows that the CJEU relies more on the complete life view approach to assess measures discriminating old people and the fair innings argument approach to assess measures discriminating young people. This results in old people often having to accept disadvantageous measures and young workers often being treated more favourably.


Beryl ter Haar
Beryl ter Haar is assistant professor and academic coordinator of the Advanced LL.M. Global and European Labour Law at Leiden University and visiting professor at the University of Warsaw.
Article

The Windrush Scandal

A Review of Citizenship, Belonging and Justice in the United Kingdom

Journal European Journal of Law Reform, Issue Online first 2020
Keywords Windrush Generation, Statelessness, Right to nationality, Genocide, Apologetic UK Human Rights Act Preamble
Authors Namitasha Goring, Beverley Beckford and Simone Bowman
AbstractAuthor's information

    This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971.
    The kindling for this debacle was the ‘hostile environment policy’, later the ‘compliant environment policy’ that operated to formally strip British citizens of their right to a nationality in flagrant violation of international and domestic law. This article argues that the Human Rights Act, 1998 must be amended to include a very clear provision that guarantees in the UK a person’s right to a nationality as a portal to a person’s inalienable right to life. This balances the wide discretion of the Secretary of State under Section 4 of the Nationality, Immigration and Asylum Act, 2002 to deprive a person of their right to a nationality if they are deemed to have done something seriously prejudicial to the interests of the UK.
    This article also strongly recommends that the Preamble to the UK Human Rights Act, 1998 as a de facto bill of rights, be amended to put into statutory language Independent Advisor Wendy Williams’ ‘unqualified apology’ recommendation in the Windrush Lessons Learned Report for the deaths, serious bodily and mental harm inflicted on the Windrush Generation. This type of statutory contrition is in line with those of countries that have carried out similar grievous institutional abuses and their pledge to prevent similar atrocities in the future. This article’s contribution to the scholarship on the Human Rights Act, 1998 is that the Windrush Generation Scandal, like African slavery and British colonization, has long-term intergenerational effects. As such, it is fundamentally important that there is a sharp, comprehensive and enforceable legal mechanism for safeguarding the rights and interests of citizens as well as settled migrants of ethnically non-British ancestry who are clearly vulnerable to bureaucratic impulses.


Namitasha Goring
Namitasha Goring, Law and Criminology Lecturer Haringey Sixth Form College, LLM, PhD.

Beverley Beckford
Beverly Beckford, Barrister (Unregistered) (LLM).

Simone Bowman
Simone Bowman, Barrister (LLM Candidate DeMontford University).
Article

Regional Differentiation in Europe, between EU Proposals and National Reforms

Journal European Journal of Law Reform, Issue Online first 2020
Keywords regional differentiation, regional disparities, autonomy, regionalism, subsidiarity, European Union, multilevel governance
Authors Gabriella Saputelli
AbstractAuthor's information

    Regions and local governments play a very important role in the application of European law and in the implementation of European policies. The economic crisis of 2008 has accentuated territorial and social differentiation and highlighted the negative effects of globalization. This has created resentment among peripheral and marginal communities in the electoral results, but also a strong request for involvement, participation and sometimes independence from territories. These developments raise new questions about the relationship between the EU and the Regions and, more widely, about the role of subnational entities in the EU integration process, as they are the institutions nearest to citizens.
    The aim of this article is to contribute to that debate by exploring the following research question: ‘is subnational differentiation positive or negative for European integration?’ Towards a possible answer, two perspectives are examined from a constitutional law approach. From the top down, it examines the attitude of the EU towards regional differentiation, from the origins of the EU integration process and its development until recent initiatives and proposals. From the bottom up, it analyses the role of subnational entities by presenting the Italian experience, through the reforms that have been approved over the years until the recent proposal for asymmetric regionalism. The aim is to understand whether regional differentiation still represents a positive element for the European integration process, considering the role that subnational entities play in many policies and the challenges described earlier.


Gabriella Saputelli
Researcher of Public Law at the Institute for the Study of Regionalism, Federalism and Self Government (ISSiRFA) of the National Research Council (CNR).
Article

Access_open Basel IV Postponed: A Chance to Regulate Shadow Banking?

Journal Erasmus Law Review, Issue 2 2020
Keywords Basel Accords, EU Law, shadow banking, financial stability, prudential regulation
Authors Katarzyna Parchimowicz and Ross Spence
AbstractAuthor's information

    In the aftermath of the 2007 global financial crisis, regulators have agreed a substantial tightening of prudential regulation for banks operating in the traditional banking sector (TBS). The TBS is stringently regulated under the Basel Accords to moderate financial stability and to minimise risk to government and taxpayers. While prudential regulation is important from a financial stability perspective, the flipside is that the Basel Accords only apply to the TBS, they do not regulate the shadow banking sector (SBS). While it is not disputed that the SBS provides numerous benefits given the net credit growth of the economy since the global financial crisis has come from the SBS rather than traditional banking channels, the SBS also poses many risks. Therefore, the fact that the SBS is not subject to prudential regulation is a cause of serious systemic concern. The introduction of Basel IV, which compliments Basel III, seeks to complete the Basel framework on prudential banking regulation. On the example of this set of standards and its potential negative consequences for the TBS, this paper aims to visualise the incentives for TBS institutions to move some of their activities into the SBS, and thus stress the need for more comprehensive regulation of the SBS. Current coronavirus crisis forced Basel Committee to postpone implementation of the Basel IV rules – this could be perceived as a chance to complete the financial regulatory framework and address the SBS as well.


Katarzyna Parchimowicz
LLM. Finance (Frankfurt), PhD candidate at the University of Wrocław, Poland, Young Researcher at the European Banking Institute, Frankfurt, Germany – katarzyna.parchimowicz@uwr.edu.pl.

Ross Spence
EURO-CEFG PhD Fellow at Leiden University Law School, Young Researcher at the European Banking Institute and Research Associate at the Amsterdam Centre for Law and Economics – r.spence@law.leidenuniv.nl.
Article

Access_open Positive State Obligations under European Law: A Tool for Achieving Substantive Equality for Sexual Minorities in Europe

Journal Erasmus Law Review, Issue 3 2020
Keywords Positive obligations, sexual minorities, sexual orientation, European law, human rights
Authors Alina Tryfonidou
AbstractAuthor's information

    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.


Alina Tryfonidou
Professor of Law, University of Reading.
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.
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