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Article

Building Legislative Frameworks

Domestication of the Financial Action Task Force Recommendations

Journal European Journal of Law Reform, Issue Online first 2020
Keywords domestication, legislative processes, functionality, efficacy
Authors Tshepo Mokgothu
AbstractAuthor's information

    As the international financial framework develops it has brought with it dynamic national legislative reforms. The article establishes how the domestication of the Financial Action Task Force (FATF) Recommendations directly affects national legislative processes as the FATF mandate does not have due regard to national legislative drafting processes when setting up obligations for domestication. The article tests the FATF Recommendations against conventional legislative drafting processes and identifies that, the proposed structures created by the FAFT do not conform to traditional legislative drafting processes. Due regard to functionality and efficacy is foregone for compliance. It presents the experience of three countries which have domesticated the FATF Recommendations and proves that the speed at which compliance is required leads to entropic legislative drafting practices which affects harmonisation of national legislation.


Tshepo Mokgothu
Tshepo Mokgothu, LLB (University of Botswana), LLM (University of Kent) is a recipient of the Joint Master in Parliamentary Procedures and Legislative Drafting and a Senior Legislative Drafter at The Attorney General’s Chambers in Botswana.
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

Language and Gender

The Importance of Including a Gender Perspective in the Language of the Constitutional Reform in Spain

Journal European Journal of Law Reform, Issue 1 2020
Keywords language, gender, Constitution, reform, Spain
Authors Ana Marrades
AbstractAuthor's information

    Language is a reflection of culture, and at the same time it helps to build that culture. In the same way, it can be used to transform it. Language serves for describing a culture, to show what we see, but at the same time, it strengthens the relationships of power that exist on the basis of male power. In this way, we can use language to build other kinds of relationships based on equality.
    The Spanish Constitution is written in the masculine. Although it is based on equality, masculine language shows that the power relations lean towards men, and this hides women’s participation. When a text or a legal message uses structures or words that hide or discriminate against one gender, it can be said that linguistic sexism exists, and this violates the principle of equality. This is a reflection about what is happening in our society because language describes cultural values. This exclusion of women in the constitutional text is in itself a denial of them as subjects of rights and as citizens. This is not only a denial of the part of power that corresponds to them, but also the consolidation of a collective story of female subordination.
    Therefore this article aims to focus on the need to carry out a revision of the Spanish Constitution in female and inclusive language that, in parallel to the recognition and guarantee of parity democracy, makes women visible as autonomous subjects. In addition, it also breaks with the male universality of the language and the monopoly of male language to define the sources of the law, as well as rights, powers, institutions, values and policies.


Ana Marrades
Senior lecturer in Constitutional law, University of Valencia.
Article

Gender Neutrality in EU Legislative Drafting

Journal European Journal of Law Reform, Issue 1 2020
Keywords legislative drafting, EU legislation, EU treaties, multilingualism, gender neutrality
Authors William Robinson
AbstractAuthor's information

    In the English-speaking world the issue of gender-neutral drafting in legislation has been a much discussed topic for many years, and there are few legislative drafting manuals in the English-speaking world that do not address the issue.
    The EU and its institutions also attach great importance to gender issues, as is shown by the solemn commitments in EU texts to gender equality, by the establishment at the EU level of bodies or committees to focus on those issues, and by the EU actions and policies that seek to address them. But the issue of gender-neutral drafting in legislation is not even mentioned in the guidance drawn up by the legislative drafting experts of the EU institutions.
    This contribution, therefore, looks at how gender issues are dealt with in practice in the EU Treaties and in EU legislation. It finds signs of a traditional approach that is beginning to evolve but only slowly and somewhat unevenly.
    The contribution considers some of the reasons behind the approach taken by the EU institutions to gender neutrality in drafting and the impact of the important EU principles of multilingualism and multiculturalism before seeking to draw some conclusions.


William Robinson
Associate Research Fellow at the Institute of Advanced Legal Studies in London; formerly a coordinator in the Quality of Legislation Team of the European Commission Legal Service.
Article

Reunification, Integration and Unification of Law

Germany and Korea

Journal European Journal of Law Reform, Issue 4 2019
Keywords reunification, Korean nation, integration, Constitution, human rights, social market economy
Authors Ulrich Karpen
AbstractAuthor's information

    The meetings of US President Donald Trump and North Korean leader Kim Jong-un, on 12 June 2018 in Singapore, as well as of South Korean President Moon Jae-in and Kim Jong-un, on 18 and 19 September 2018 in Pyongyang, intensified hopes of a step-by-step process aimed at the reunification of Korea. This development may follow the patterns of (West) German Chancellor Willy Brandt’s ‘East Policy’ with the Soviet Union and the (East) German Democratic Republic in 1970-71, which led to the reunification of Germany under Chancellor Helmut Kohl, in 1990. This article deals with similarities and differences in regard to Germany’s and Korea’s recent histories. It analyses the political, economic and legal aspects of a possible way to achieve Korean unity.


Ulrich Karpen
Prof. Dr. Ulrich Karpen, Faculty of Law, University of Hamburg, Germany.
Article

From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel

Journal European Journal of Law Reform, Issue 3 2019
Keywords unconstitutional constitutional amendment, constitutional law, constitutional principles, constituent power, Israel, judicial review
Authors Suzie Navot and Yaniv Roznai
AbstractAuthor's information

    Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the ‘constitutional revolution’ of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992 – which included a limitation clause – and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. In that decision, the Supreme Court stated that all basic laws – even if not entrenched – have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled ‘Basic-Law’ is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution – that is, basic laws – addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review.
    Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional – not regular – legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court, arguing that the Knesset’s constituent power is actually being ‘abused’.
    These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent?
    This article examines the almost unique position of Israeli jurisprudence in relation to the doctrine of ‘unconstitutional constitutional amendments’. It focuses on the possibility of applying the doctrine in the Israeli case laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of this article is that in light of the unbearable ease with which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.


Suzie Navot
Suzie Navot is Full Professor, the Haim Striks School of Law, College of Management Academic Studies, Rishon Lezion.

Yaniv Roznai
Yaniv Roznai is Senior Lecturer, Harry Radzyner Law School, Interdisciplinary Center (IDC) Herzliya.
Article

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Harmonization Potential of the Charter of Fundamental Rights of the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords application of EU law, Article 51 of the Charter, Charter of Fundamental Rights of the EU, Court of Justice, jurisdiction of the Court of Justice, market freedoms, spontaneous harmonization
Authors Filippo Fontanelli and Amedeo Arena
AbstractAuthor's information

    This article discusses two underrated and connected aspects that determine the applicability of the EU Charter on Fundamental Rights to Member State measures. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law has been overlooked by legal scholarship. Second, because the scope of application of EU law and that of the Charter are identical, the latter suffers from the same uncertainties as the former. This article concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms. As a result, a certain spontaneous harmonization of human rights protection has emerged.


Filippo Fontanelli
Respectively, Senior Lecturer in International Economic Law, University of Edinburgh; and Associate Professor, Università degli Studi di Napoli ‘Federico II’. The work is the outcome of both authors’collaboration. Amedeo Arena drafted sections A to C, Filippo Fontanelli drafted sections D to G.

Amedeo Arena
A previous version of this work appeared in M. Andenas, T. Bekkedal & L. Pantaleo (Eds.), The Reach of Free Movement, Springer, TMC Asser Press, 2017, p. 293-312. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Promoting Legislative Objectives Throughout Diverse Sub-National Jurisdictions

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

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


Lorna Seitz
The Legis Institute. Seitz earned her JD from Boston University (BU), where she served as Editor-in-Chief of Professor Seidman’s Legislative Clinics. After graduating, Seitz served as the Director of the BU/ICLAD Legislative Distance Drafting Program for several years, taught in the BU Legislative Clinics (and overseas) alongside Professor Seidman, and served as principal for the International Consortium for Law and Development (a non-profit co-founded by the Seidmans) from 2004-2014. Seitz co-founded The Legis Institute to realize the combined potential of ILTAM and 21st Century technology to overcome barriers to inclusive, responsive, evidence-based policy and law development and governance.
Article

Asymmetry as an Instrument of Differentiated Integration

The Case of the European Union

Journal European Journal of Law Reform, Issue 2 2016
Keywords asymmetry, comparative and EU law, differentiated integration, crisis, economic governance
Authors Giuseppe Martinico
AbstractAuthor's information

    This article offers a reflection on asymmetry as an instrument of differentiated integration in the current phase of the EU integration process. As for the structure, this work is divided into four parts: First, I shall clarify what I mean by asymmetry as an instrument of integration relying on comparative law. This comparative exercise is particularly useful because it allows us to acknowledge the strong integrative function performed by asymmetry in contexts different from but comparable to the EU system. Second, I shall look at EU law and recall the main features of asymmetry in this particular legal system. In the third part of the article I shall look at the implications of the financial crisis, which has increased the resort to asymmetric instruments. In the last part I shall deal with some recent proposals concerning the differentiated representation of the Eurozone. The idea of differentiated integration and that of asymmetry have been extended and adapted to many different processes by scholars over the years, but to avoid misunderstandings I would like to make clear that in this work I shall analyse those forms of asymmetries that are allowed and carried out only when respect for an untouchable core of integration is guaranteed. This is crucial to conceive asymmetry as an instrument of integration.


Giuseppe Martinico
Associate Professor of Comparative Public Law, Scuola Sant’Anna, Pisa; Research Fellow, Centre for Studies on Federalism, Turin; Honorary Professor at the European law research centre, University of Henan, Kaifeng, China. Article Completed on 23 February 2016. This article is part of the project "Gobernanza económica europea y transformación constitucional”, (MINECO, DER2014-57116P).
Article

Prohibition of Discrimination: Citizenship as a Possible Discrimination Basis

Journal European Journal of Law Reform, Issue 3 2016
Keywords anti-discrimination law, Serbian Law, harmonization, right to a personal name, European Court of Justice
Authors Olga Jović-Prlainović and Jelena Belović
AbstractAuthor's information

    In modern society, the right to equality is not just a universal moral obligation; it is rather an expression of a generally accepted rule in international law that all people have equal rights, independently of differences based on innate or acquired personal characteristics. Prohibition of discrimination is a civilization heritage, and it is determined by systematically overcoming prejudices and stereotypes as key factors of discrimination, where educational institutions, media, public authority, and non-governmental organizations all have a vital role. Tackling with discrimination is not just the application of rules regulated by law and taking necessary measures towards social groups which are in an unequal position, but it is also a continuous development of tolerance when it comes to ethnicity, religion, gender, minorities, as well as acceptance of the existing interpersonal differences. It is well known that the area of West Balkans is often a breeding ground where stereotypes and prejudices thrive for decades. The strategic aim of the Republic of Serbia is membership in the European Union, and so nation-wide law regulation concerning this matter is directed at complying with the European Union Law since the prohibition of discrimination is one of the pillars of the European Union Law. In this article, the influence of the European Union Law and practical measures taken by the European Court of Human Rights in order to prohibit discrimination in a specific international and private domain are analyzed.


Olga Jović-Prlainović
Olga Jović-Prlainović is Associate Professor at the Faculty of Law, University of Pristina, Kosovska Mitrovica.

Jelena Belović
Jelena Belović is Assistant Professor at the Faculty of Law, University of Pristina, Kosovska Mitrovica.
Article

Criminal Issues in International Space Law

Journal European Journal of Law Reform, Issue 1 2016
Keywords space law, criminal law, international law, jurisdiction, space exploration
Authors Michael Chatzipanagiotis
AbstractAuthor's information

    This paper attempts to outline the rules and principles of international space law governing criminal activity in outer space or on board a space object. The relevant issues concern mainly the exercise of criminal jurisdiction, including extradition, and the disciplinary authority on board a space object. First, we examine the pertinent rules of general international law. Then, we analyse the applicable provisions of general space law, namely the Outer Space Treaty and the Moon Agreement, as well as the special rules on the International Space Station. Subsequently, we attempt to propose solutions to the main future challenges in international space law, which regard criminal behaviour on board aerospace vehicles, aboard private space stations, and issues regarding interplanetary missions and human settlements on celestial bodies.


Michael Chatzipanagiotis
Attorney-at-law, Athens, Greece; Adjunct Professor, European University of Cyprus, Law School, Nicosia, Cyprus.
Article

Identifying the Impetus behind the Europeanization of the Private International Law Rules on Family Matters and Succession

Journal European Journal of Law Reform, Issue 2 2015
Keywords area of freedom security and justice, EU citizenship, free movement of persons, international family matters, international succession
Authors Jacqueline Gray PhD
AbstractAuthor's information

    The EU is currently in the midst of unifying the private international law rules on family matters and succession. This article seeks to explain this expansion into essentially non-economic territory. In order to do so, it presents the ideological, problem-based, and legal considerations that appear to lie at the heart of legislative action in these fields. However, as will become apparent, it is the role of the Member States that is crucial in guiding this process.


Jacqueline Gray PhD
PhD Candidate, Utrecht Centre for European Research into Family Law, Utrecht University.
Article

To Recognize or Not to Recognize? That Is the Question!

Motherhood in Cross-Border Surrogacy Cases

Journal European Journal of Law Reform, Issue 2 2015
Keywords cross-border surrogacy, motherhood, private international law, ordre public, European Human Right Convention
Authors Stefanie Sucker PhD
AbstractAuthor's information

    This article describes the status quo in cross-border surrogacy cases, more specifically how national courts deal with the recognition of parenthood validly established abroad. As the recognition of motherhood is deemed to violate the national ordre public, the solutions so far, i.e. recognition of fatherhood and adoption, will be examined. Moreover, the arguments for an alleged ordre public-violation concerning motherhood will be presented. Finally, the question whether the European Human Right Convention has an impact on the interpretation of the best interest of the child will be answered.


Stefanie Sucker PhD
The author is currently writing a (German) PhD on the topic of cross-border surrogacy. She analyses private international and procedural law questions of German, Dutch, French and Austrian law. Thus, reference as examples will be made to these legal systems.
Article

Out of the Box? Domestic and Private International Law Aspects of Gender Registration

A Comparative Analysis of Germany and the Netherlands

Journal European Journal of Law Reform, Issue 2 2015
Keywords gender identity, sex registration, intersex, transgender, private international law
Authors Dr. Marjolein van den Brink, Dr. iur. Philipp Reuß and Dr. Jet Tigchelaar
AbstractAuthor's information

    The legal regulation of gender identity seems to be in a state of flux. This paper compares the German and Dutch legal systems with regard to the registration of a person’s sex, focusing on the possibility in both countries not to register a baby’s sex until it can be clearly determined. In both systems, it has thus become possible that a person has no specified gender for a considerable period of time. These persons may encounter various kinds of legal problems, since the two jurisdictions have not been adapted to accommodate them. In addition, two potential problems regarding private international law issues are discussed.


Dr. Marjolein van den Brink
Dr. Marjolein van den Brink is assistant professor at the Netherlands institute for human rights (SIM), Utrecht University. She participates in the research programme of the Utrecht centre for European research into family law.

Dr. iur. Philipp Reuß
Philipp Reuß, Dr. iur., MJur (Oxford) is research assistant at LMU Munich’s Institute of international law –comparative law.

Dr. Jet Tigchelaar
Dr. Jet Tigchelaar is assistant professor at the Institute of jurisprudence, constitutional and administrative law, Utrecht University. She participates as researcher at the Utrecht centre for European research into family law.
Article

Regulating Genetic Discrimination in the European Union

Pushing the EU into Unchartered Territory or Ushering in a New Genomic Era?

Journal European Journal of Law Reform, Issue 1 2015
Keywords genetics, regulation, discrimination, data protection, European Union
Authors Aisling de Paor and Delia Ferri
AbstractAuthor's information

    Against the backdrop of rapid developments in genetic science and technology, one of the main concerns arising in this area is the potential use of genetic testing to discriminate, especially in the employment and insurance contexts. Employers and insurance companies may use the results of genetic tests to discriminate (primarily for economic advantage), based on perceptions of future health risks or future disabilities. This article explores the scope for an EU to effectively address genetic discrimination and the misuse of genetic information. It first provides a theoretical overview of the choice of regulatory frameworks. It then examines the scope and protection of current non- discrimination laws in the EU and investigates the possibility of an EU level response to address the misuse of genetic information.


Aisling de Paor
BCL, LLM, PhD, Solicitor (Law Society of Ireland) – Lecturer in Law, Dublin City University.

Delia Ferri
LLM, PhD in European and Italian constitutional law, Attorney at Law registered at the Verona Bar (Italy) – Lecturer in Law, National University of Ireland Maynooth.
Article

Medically Assisted Reproduction in Egypt, Iran, Saudi Arabia and the United Arab Emirates

Sunni and Shia Legal Debates

Journal European Journal of Law Reform, Issue 2 2014
Keywords medically assisted reproduction, Islam, Middle East, family formation, law
Authors Andrea Büchler and Eveline Schneider Kayasseh
AbstractAuthor's information

    Since the mid-1980s, biotechnologies have been widely used to assist human conception around the world, and especially in the Middle East. In this article, our main focus is the United Arab Emirates (UAE), as well as Egypt, the Islamic Republic of Iran, and Saudi-Arabia. In these Muslim-majority countries, an ever rising demand for fertility treatments runs parallel to far-reaching demographic and social changes. While assisted reproductive technologies offer various methods to pursue the desire to have biological children, they do also underscore religious and cultural sensibilities about traditional male-female relationships and family formation.
    In order to outline contemporary opinions and state laws and regulations in the countries mentioned in the outset, core notions and concepts of the Islamic family that are relevant for understanding attitudes regarding reproductive medicine and that have influence on couples seeking fertility treatment are outlined. It is also shown how ethical-juridical considerations have shaped the scholarly discourse about assisted reproduction. In this context, assisted reproductive techniques that include eggs, sperm, embryos, or wombs from third parties have been particularly contentious. In fact, there remain different views among Islamic jurists and senior clerics in Shia Islam regarding ethically controversial issues such as egg and sperm donation, as well as surrogate motherhood. While the number of IVF-clinics is on the rise in all countries discussed in this article, only in the UAE are clinics operating with rather comprehensive legislative oversight.


Andrea Büchler
University of Zurich, Switzerland.

Eveline Schneider Kayasseh
University of Zurich, Switzerland.
Article

Human Rights in Islamic Law, Specifically the Guarantee of Procedural Justice

Journal European Journal of Law Reform, Issue 2 2014
Keywords Islamic law, procedural justice, human rights, rules of evidence, Cairo Declaration of Human Rights
Authors Mohamed Y. Mattar
AbstractAuthor's information

    International law guarantees several fundamental principles of procedural justice, such as presumption of innocence, the right against self-incrimination, the right to be tried without undue delay, the right to examine witnesses, and the right to legal assistance. In this article I examine whether Islamic law guarantees similar procedural protections and demonstrate how Islamic law provides for basic human rights as well as general principles that may serve as guidelines in procedural justice. These include the principle of non-retroactivity, the principle of personal accountability, the principle of no crime or punishment without law, the right to be presumed innocent until proven guilty, and the right to defence. The article also identifies rules of evidence provided by Islamic law which are designed to protect the accused.


Mohamed Y. Mattar
Mohamed Y. Mattar is a Senior Research Professor of International Law and the Executive Director of The Protection Project at The Johns Hopkins University School of Advanced International Studies (SAIS).
Article

The Manifestation of Religious Belief Through Dress

Human Rights and Constitutional Issues

Journal European Journal of Law Reform, Issue 2 2014
Keywords religion, religious freedom, burqa, hijab, Muslim
Authors Anthony Gray
AbstractAuthor's information

    Jurisdictions around the world continue to grapple with the clash between religious freedoms and other freedoms and values to which a society subscribes. A recent, and current, debate concerns the extent to which a person is free to wear items of clothing often thought to be symbolic of the Muslim faith, though the issues are not confined to any particular religion. Bans on the wearing of this type of clothing have often (surprisingly) survived human rights challenges, on the basis that governments had legitimate objectives in banning or restricting them. A pending case gives the European Court another chance to reconsider the issues. It is hoped that the Court will closely scrutinise claims of legitimate objectives for such laws; perceptions can arise that sometimes, governments are pandering to racism, intolerance and xenophobia with such measures, rather than seeking to meet more high-minded objectives.


Anthony Gray
Professor of Law, University of Southern Queensland, Australia.

    Under the Kafala system, which applies in all Arab countries, migrant workers must attain a work entry visa and residential permit, which is possible only if they are working for a domestic institution or corporation or a citizen of the respective country. Each and every employer is required, based on the Kafala system, to adopt all legal and economic responsibilities for all of the employer's workers during their contractual period. By giving wide-ranging powers and responsibilities unilaterally to employers, the Kafala system subjects workers to abysmal and exploitative working conditions, violence, and human rights abuses. Some of these problems have recently made headlines in the United States and in Europe in connection with the campus being built by New York University in Abu Dhabi. While NYU imposed a code of labor standards on its direct contractual partners, it claimed to have no means of controlling subcontractors. Nor did NYU try very hard, it seems, to verify compliance even by its direct contractual partners.
    Migrant workers make up at least 30 percent of the population of Saudi Arabia and 49 percent of Saudi Arabia's entire workforce. Employers control Saudi Arabia's Kafala system, in which migrant workers are the weakest link. Studies and international organizations report that foreigners employed in Saudi Arabia have returned home with many complaints. In 2006, Saudi Arabia re-examined all laws including its labor law. This re-examination resulted in abolishing some terms used in labor law, such as the kafala system, but the system remains as is. The new labor law includes many positive changes, but not enough according to the assessment of local and international scholars and observers. In this paper, I will reveal laws, practices and patterns that essentially cause the vulnerability of migrant workers, and I will suggest effective alternative strategies. This paper should contribute to our growing understanding of issues of concern for migrant workers in Saudi Arabia and other Arab countries and help to develop specific and necessary legal and institutional responses.


Majed M. Alzahrani
LL.M, Indiana University, Robert H. McKinney School of Law. The author would like to thank Professor Frank Emmert for advice and guidance in the production of this article.
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