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Article

Access_open Can Non-discrimination Law Change Hearts and Minds?

Journal Erasmus Law Review, Issue 3 2020
Keywords law and society, social change, discrimination, non-discrimination law, positive action
Authors Anita Böcker
AbstractAuthor's information

    A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.


Anita Böcker
Anita Böcker is associate professor of Sociology of Law at Radboud University, Nijmegen.
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
Alina Tryfonidou is Professor of Law, University of Reading.
Article

Access_open How Far Should the State Go to Counter Prejudice?

A Positive State Obligation to Counter Dehumanisation

Journal Erasmus Law Review, Issue 3 2020
Keywords prejudice, soft paternalism, empathy, liberalism, employment discrimination, access to goods and services
Authors Ioanna Tourkochoriti
AbstractAuthor's information

    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.


Ioanna Tourkochoriti
Ioanna Tourkochoriti is Lecturer Above the Bar, NUI Galway School of Law.
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.

    The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushed state obligations to counter prejudice and stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society. The recognition dimension of inclusive equality, together with the CRPD’s provisions on awareness raising, mandates that states parties target prejudice and stereotypes about the capabilities and contributions of persons with disabilities to society. Certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women, require states to eradicate harmful stereotypes and prejudice about people with disabilities in various forms of interpersonal relationships. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights. This article assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations requiring states to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations to eliminate prejudice and stereotypes in interpersonal relationships. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to those obligations.


Andrea Broderick
Andrea Broderick is Assistant Professor at the Universiteit Maastricht, the Netherlands.
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.

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

Access_open The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Proposals for Legislative Reform to Promote Equality through Schools and the Education System

Journal Erasmus Law Review, Issue 3 2020
Keywords Transformative pedagogy, equality legislation, promotion of equality, law reform, using law to change hearts and minds
Authors Anton Kok, Lwando Xaso, Annelize Steenekamp e.a.
AbstractAuthor's information

    In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds.


Anton Kok
Anton Kok is Professor of Jurisprudence at the Faculty of Law of the University of Pretoria.

Lwando Xaso
Lwando Xaso is an independent lawyer, writer and historian.

Annelize Steenekamp
Annelize Steenekamp is an independent lawyer.

Michelle Oelofse
Michelle Oelofse is an Academic associate and LLM candidate at the University of Pretoria.
Article

Access_open New Sales and Contract Law in Argentina and France

Models for Reform Inspired by the CISG and the PICC?

Journal European Journal of Law Reform, Issue 3 2020
Keywords contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law
Authors Edgardo Muñoz and Inés Morfín Kroepfly
AbstractAuthor's information

    The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
Ines Morfin Kroepfly, J.D., Universidad Panamericana, Guadalajara.
Article

The Windrush Scandal

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

Journal European Journal of Law Reform, Issue 3 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).

Jee Aei (Jamie) Lee
Jee Aei Lee is Crime Prevention and Criminal Justice Officer, Justice Section, United Nations Office on Drugs and Crime, Vienna, Austria.

Yvon Dandurand
Yvon Dandurand is Professor Emeritus in Criminology, University of the Fraser Valley, and Fellow and Senior Associate at the International Centre for Criminal Law Reform, Vancouver, Canada. Contact authors: jeeaei.lee@un.org; Yvon.Dandurand@ufv.ca.

Tali Gal
Tali Gal is a Senior Lecturer and Head of School of Criminology at the University of Haifa, Israel. Contact author: tali.gal.04@gmail.com.
Article

Access_open South African Mandatory Offers Regime: Assessing Minorities’ Leverage to Seek Recourse and Equal Treatment in Takeover Bids

Journal Erasmus Law Review, Issue 2 2020
Keywords company takeovers, mandatory offers, minority shareholders, equal treatment, acquisition procedure
Authors Paul Nkoane
AbstractAuthor's information

    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.


Paul Nkoane
Paul Nkoane is a lecturer at the College of Law of the University of South Africa in Pretoria.

    The Greek Supreme Court, in a case about the transfer of a business and the obligation on the transferee to continue employing the transferred employees, underlined the importance of a thorough and genuine control on all factors to be taken into consideration in order to conclude on the existence of a transfer of undertaking or not: the business transferred must retain an autonomous economic identity, in the sense that the functional link between the different factors transferred is retained, thus allowing the new entity to use them in order to exercise an economic activity identical or similar to the previous one.


Effie Mitsopoulou
Effie Mitsopoulou is an attorney-at-law at Effie Mitsopoulou Law Office.
Case Reports

2020/18 Prohibition of dismissal of pregnant employee (RO)

Journal European Employment Law Cases, Issue 2 2020
Keywords Gender discrimination
Authors Andreea Suciu and Teodora Mănăilă
AbstractAuthor's information

    Analysing the national legal framework in relation to the protection of pregnant employees and employees who have recently given birth or are breastfeeding, provisions which transposed the regulations of Directive 92/85/EEC and of the conclusions in case C-103/16, Jessica Porras Guisado – v – Bankia S.A. and Others, the Constitutional Court of Romania ascertained that the dismissal prohibition of a pregnant employee is strictly restricted to reasons that have a direct connection with the employee’s pregnancy status. As for other cases where the termination of the employment contract is the result of disciplinary misconduct, unexcused absence from work, non-observance of labour discipline, or termination of employment for economic reasons or collective redundancies, the employer must submit in writing well-reasoned grounds for dismissal.


Andreea Suciu
Andreea Suciu is Managing Partner and attorney-at-law at Suciu | The Employment Law Firm, Bucharest, Romania.

Teodora Mănăilă
Teodora Mănăilă is Managing Partner and attorney-at-law at Suciu | The Employment Law Firm, Bucharest, Romania.

    The Greek Supreme Court in Plenary Session, in a long-awaited decision, has ruled that an employee who has not been able to exercise his right to annual leave due to long-term sick leave is still entitled to his paid annual leave as well as to annual leave allowance.


Effie Mitsopoulou
Effie Mitsopoulou is an attorney-at-law at Effie Mitsopoulou Law Office.

    Applying the ECJ’s Maschek judgment, the Zutphen subdistrict court has found that an employee was not entitled to an allowance in lieu of untaken paid annual leave at the end of the employment relationship, as she had already received special leave. Moreover, the obligation to inform the employee concerning the right to (exercise) paid annual leave did not rest upon the employer.


Lisa de Vries
Lisa de Vries is a student at Erasmus School of Law and Editorial Assistant of EELC.

Jan-Pieter Vos
Jan-Pieter Vos is Labour Law teacher and PhD candidate at Erasmus School of Law and editor of EELC.

    The Supreme Court of the Netherlands has quashed a verdict of the Court of Appeal that held that a social plan provision stipulating the capping of a redundancy allowance in view of an entitlement to early retirement pension was invalid because of age discrimination. According to the Supreme Court, a more marginal justification test should have been applied to a social plan. The Court of Appeal, moreover, did not consider all the legitimate aims it specified and should also have taken additional social plan measures as well as pension measures from the past into account. By not doing so, it was not properly examined whether the social plan constituted age discrimination.


Albertine Veldman
Albertine Veldman is a lecturer in European and Dutch labour law at Utrecht University, The Netherlands.

    The Supreme Court has allowed an appeal by one of the UK’s major supermarket chains, overturning a finding that it was vicariously liable for a rogue employee’s deliberate disclosure of payroll data related to some 100,000 co-workers, of whom 10,000 brought a group claim for damages.


Richard Lister
Richard Lister is a Managing Practice Development Lawyer at Lewis Silkin LLP.
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