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In this book, James Gallen provides an in-depth evaluation of the responses of Western States and churches to their historical abuses from a transitional justice perspective. Using a comparative lens, this book examines the application of transitional justice to address and redress the past in Ireland, Australia, Canada, the United States and United Kingdom. It evaluates the use of public inquiries and truth commissions, litigation, reparations, apologies, and reconciliation in each context to address these abuses. Significantly, this novel analysis considers how power and public emotions influence, and often impede, transitional justice's ability to address historical-structural injustices. In addressing historical abuses, power fails to be redistributed and national and religious myths are not reconsidered, leading Gallen to conclude that the existing transitional justice efforts of states and churches remain an unrepentant form of justice. This title is also available as Open Access on Cambridge Core.
This article considers the structural barriers that exist for individuals to hold the EU responsible for violations of human rights abuses in its CSDP missions, despite the theoretical availability of a framework for remedies. This is a result of jurisdictional complications with CFSP/CDSP measures, attribution difficulties, and ambiguity in what constitutes unlawful human rights conduct. While alternative measures exist to compensate individuals for violation of their rights, these do not align with the often-stated right to an effective remedy within the EU. As such, this Article argues that the field requires serious reform in order to ensure that legal relief for individuals against unlawful conduct by the EU is an effective and enforceable right.
Article 5 of the European Convention on Human Rights enshrines the right to liberty, one of the oldest and most fundamental rights in the human rights tradition, and one of the core rights in the Convention. Central to the judicial understanding of Article 5 is the ‘exhaustive justification principle’: unlike with other rights, such as the right to privacy, interferences with liberty can only be justified by one of the specific reasons listed in Article 5 itself. This article shows that this rigidity has posed problems in practice: faced with modern developments unforeseeable at the time of the Convention's writing, such as the use of novel policing techniques and the COVID-19 pandemic, judges have interpreted Article 5 in an unusual and artificial way, sacrificing the exhaustive justification principle in doing so, in order to achieve sensible outcomes. The integrity of Article 5 has been threatened, with serious consequences for the future protection of the right to liberty. This trend is explained, evidenced and evaluated, and some (partial) solutions and concessions are considered.
The current paradigm of biodiversity conservation, with its continued focus on the notion of pristine nature, has resulted in the separation of humans and nature at the expense of both biological and cultural–linguistic diversity. The continued annexation of land for the cause of conservation has resulted in the curtailment of both rights and access to local and diverse food sources for many rural communities. Indigenous Peoples and local communities are fundamental to conserving biodiversity through sustainable use of nature despite repeated attempts to dispossess them from their lands, cultures and knowledge. It has been this traditional and land-based knowledge that has contributed to the conservation of biodiversity whilst also supporting healthy, diverse and nutritious diets. If we are to achieve a more just and sustainable future, we need to continue to centre conservation initiatives around rights, access and equity whilst respecting a plurality of perspectives, worldviews and knowledge systems. Here we review alternative approaches that help reconcile the right to food with biodiversity conservation, such as biocultural rights, rights-based approaches and integrated land management schemes, with the aim of identifying optimal ways forward for conservation that break away from the dichotomous view that pits people against nature and instead embrace the importance of this symbiotic relationship.
This chapter explores the normative lessons offered by the structurally analogous descriptive and normative limitations of just war theory and transitional justice. Just war theory provides normative prescriptions for the onset, conduct during, ending, and aftermath of war. Transitional justice provides normative prescriptions for dealing with widespread human rights violations characteristically committed during conflict and/or periods of repression. Both just war theory and transitional justice provide normative prescriptions for profoundly non-ideal circumstances. Yet a yawning gap remains between the normative picture of just war and of transitional justice on the one hand, and the descriptive reality of contemporary conflicts and transitional justice practices on the other. To engage with the reality of each practice in a way that will prove actionable for its participants, new forms of normative guidance are needed.
The United Nations treaty bodies were established to monitor the implementation of human rights by states parties. Through ‘General Comments’ – legally non-binding clarifications of treaty obligations – they have also influenced the development of international human rights law – for example, on the right to life and climate impacts. We address this phenomenon by establishing a twofold argument. First, we argue that General Comments are used by the committees to informally shape international law. They deliberately act as human rights law-makers, knowing that international institutions, organizations and professionals in their network will subsequently refer to such instruments. Second, we argue that treaty bodies not only rely on their network once they have adopted their outcome, but the experts’ personal networks also shape the drafting process of General Comments. We develop and illustrate an analytical framework with two case studies of General Comments on the human right to water and the torture prohibition. The analysis demonstrates the need for external knowledge of both technical and legal aspects of the norms being interpreted. By addressing pressing human rights challenges, expert committees can shape the law in times of stagnation and resist contestation even from powerful states.
Utilizing historical case studies from Iran, Afghanistan, Egypt, and Iraq, Chapter 4 delves into the question of how, why, and when the Islamic supremacy clause entered constitution making in the Muslim world and how it affected the incorporation of human rights in the constitutions of Muslim-majority states. It illustrates that both human rights and Islam are often democratically and popularly demanded by majorities in some Muslim countries; therefore, both represent popular aspirations rather than theocratic imposition. That is, they are often carefully bargained and compromised provisions in constitutions.
The Xinjiang Uyghur Autonomous Region has received global attention since 2017 due to China’s massive crackdown on Uyghurs and other ethnic minorities in the region. Since 2017–2018, the Chinese Communist Party (CCP)’s crackdown on Uyghur and other Muslim minorities in Xinjiang has become unprecedented in its scope and intensity. Reports on the CCP’s highly repressive strategies in that region led to a formal expression of concern by the United Nations Committee on the Elimination of Racial Discrimination in August 20181 and several legislative hearings in the United States.2 In 2020, the United States imposed sanctions on three officials, including Chen Quanguo, who are in charge of the Xinjiang’s recent development and a major economic and paramilitary organization, the Xinjiang Production and Construction Corps (known as bingtuan), accusing it of “facilitating widespread abuses against Uighur Muslims.”3
Chapter 2 introduces a model Islamic constitution. Using this model constitution, it empirically illustrates the universe of constitutional Islamization, providing data on which countries and regions have adopted constitutional Islam and in what form. It also ranks these countries in an index according to their Islamicity and then observes how the incidence of all forms of Islam in a constitution correlates with demography, geography, colonialism, and human rights.
The negative connotations of reciprocity and its link to conduct-based responses in a lawless context have led to a juxtaposition in legal doctrine of reciprocity with community interests, institutionalisation, and the existence of objective legality. This chapter provides an overview of existing approaches to the subject and introduces the argument of this book, that reciprocity in public international law is not antithetical to community interests and obligations, but that its importance is explained by a structural factor: the sovereign equality of states. This explains and predicts where reciprocity will be relevant, and where it will find its limits.
This chapter provides an in-depth analysis of the role reciprocity plays in treaties. First looking at treaty law and how reciprocity functions in the rules on reservations to treaties, the chapter goes on to examine reciprocity’s role in bilateral treaties, drawing on the examples of air transport agreements and energy agreements in particular, before looking at reciprocity’s role in multilateral treaties of the bilateralizable, interdependent, and integral types. It then analyzes treaties creating international organizations, particularly the EU and ILO, and differentiated obligations in environmental and trade law, illustrating how reciprocity operates in these types of instrument. Finally, the chapter addresses "objective regimes" and the effects of treaties on third parties. While some limitations exist on reciprocity, these do not depend on the substance of obligations but rather on the legal equality of the subjects involved.
We are living in times of deep turmoil and rapid change. Over the past few decades, inequality has increased within and between countries.1 Simultaneously, new developments in digital technology have spread throughout the world, reconfiguring power relations and the rhythms of everyday life. Transnational technology corporations and powerful nation states have been the primary beneficiaries of the digital revolution, and their domination of digital technology concentrates power and wealth into their hands. The United States dominates the global tech economy, an evolution of American empire.2 Computers, wired together across the Internet, have drastically expanded the capacity to spy on and assess individuals, groups, and populations.
In March 2017, the Israeli Knesset (Parliament) passed a law allowing for the denial of entry or residence to foreign nationals who support Boycott, Divestment and Sanctions (BDS) against the state of Israel or its settlements.1 Proponents of BDS are part of a now global nonviolent movement of civil society (non-state) actors challenging the government of Israel’s policies towards Palestinians. Reflecting that the movement also has supporters within Israel, less than three weeks later it was revealed that Israel’s then Minister of Strategic Affairs, Gilad Erdan, also sought to expand his ministry’s collection of information on activists who support BDS to include Israeli citizens as well as foreigners.2 Governmental development of such a database on citizens was questionable both on grounds of extant Israeli law and the protection of privacy rights. However, this practice stands as a telling example of how the BDS movement has moved to the front line of Israel’s contemporary surveillance efforts.
Chapter 3 deals with Islamic supremacy clauses, source of law clauses, and repugnancy clauses, which are present in almost half of all Muslim countries’ constitutions. Islamic supremacy clauses subjugate all lawmaking to Islam, shari‘a, or Islamic precepts. This chapter traces the origins and incidence of these clauses – by finding their birth in British colonial law – and traces their relationship to demography, geography, colonial history, and human rights provisions.
The Unity Accord sealed between Mugabe and Nkomo and their supporters in 1987 not only drastically reduced violence against the Ndebele, but it also ended dissident activity generating a totally different election framework in the 1990 elections. Twenty seats reserved for whites were abolished. In 1989, Edgar Tekere, a former Zanu PF party stalwart disenchanted by Mugabe’s leadership style formed the urban-based Zimbabwe Unity Movement (ZUM). ZUM and independent candidates from within Zanu PF were not evidence of a gradual decline in elite cohesion. Zanu PF’s political stranglehold in the country directed violence at civil society. Pent-up intolerance of political opposition draped in a dictatorship outfit replaced ethnic conflict in driving violence. From the dominant power politics analysis, a social narrative approach shows the resilience of ethnicity, nationalism, loyalty, legitimacy and unity as explanatory factors for violence. However, Zanu PF also used paramilitary organisations to maintain or regain control and the abuse of legislative and judicial powers to stay in power. The 1990 general elections took place from 28 to 30 March, with many unresolved teething problems, including persistent division and weakness in the opposition. Five parties competed in the election; ZUM, the UANC, NDU, Zanu-Ndonga and Zanu PF.
Having identified that “Islamic” constitutions also often, counterintuitively, contain many democratic features and rights, Chapter 5 moves from the analysis of Islam and rights in a constitutional “textual” setting to the question of how the interaction between the two plays out in practice when litigating. It does so by using examples of court cases (for example, of women’s rights, access to justice, etc.) in Egypt and Pakistan, where the two different strands of the constitution – rights and Islam – could potentially have conflicted but did not. It shows how “modernist” judges interpreted the Islamic supremacy clauses to not only protect the rights of citizens but in some cases, for example, in cases where the right to “access to justice” was at stake, also used such clauses to develop new rights. However, it also illustrates that in other cases – such as to do with blasphemy – the Islamic content of the constitution can and has been used to erode rights to freedom of expression and even to freedom of religion. Nevertheless, the chapter’s contribution is to draw on comparative scholarship to argue that a political pursuit of Islam does not necessarily need to impede rights provided various institutional measures are in place – including independent courts with the power to engage in judicial review, competing and intellectually robust religious authorities and legislatures that can actively construct and critique religious narratives of law, and, above all, a state that can bring those with “extreme” interpretations (e.g. Salafi parties) into the nonviolent political arena and challenge them politically.
This chapter looks at reciprocity in the jurisdiction of international courts and tribunals, and the differences in the role reciprocity plays in inter-State dispute settlement, and in dispute settlement procedures that involve non-State entities such as individuals. It looks at the well-developed role that reciprocity plays in the jurisdiction of the International Court of Justice, before turning to the system of compulsory dispute settlement in the United Nations Convention on the Law of the Sea (UNCLOS). The chapter then analyzes three types of instance which concern individuals: the International Criminal Court; human rights courts and complaint mechanisms; and investment tribunals, specifically the issue of the extension of jurisdiction on the basis of an MFN clause.
Following the finding in Chapter 3 that reciprocity encounters limitations when the subjects of a legal relationship are not equal, this chapter analyses the role of reciprocity in rules pertaining to the treatment of individuals in international law, assessing how reciprocity functions differently depending on who rights are owed to in different substantive areas of law. First looking at historical standards of treatment including those based on reciprocity and the use of the minimum standard of treatment, the chapter goes on to examine how reciprocity functions in national treatment and the most-favoured nation clause. The chapter then goes on to examine the treatment of individuals under human rights, international humanitarian law, and international investment law, analyzing the differences that arise in the role of reciprocity when the legal obligations in question are owed directly to individuals. The chapter ends with an examination of recent developments in diplomatic protection.
Although the North Atlantic was plunged into crisis in the early 1970s, radicals proved unable to seize the opportunity as they entered a crisis of their own. In France, to a degree unparalleled elsewhere, prominent former radicals not only disavowed anti-imperialist internationalism but rallied behind the rival human rights internationalism. In so doing, they brought with them a set of experiences, which strengthened human rights activism. Despite their fading fortunes, and the growing strength of their rivals, radicals struggled to reinvent anti-imperialist internationalism. But they found themselves trapped in an uphill battle facing one obstacle after another. One of the most devastating blows was the internecine war between China, Vietnam, and Cambodia. Revolutionaries in all three countries had developed a revolutionary strategy based in Leninism, joined hands in the struggle against imperialism, and claimed they were transitioning to communism together. Now they slaughtered each other in the name of national self-determination. Although the Third Indochina War did not destroy radicalism, it severely destabilized radical politics. While much of this failure can be traced to deeper histories of colonialism, imperialism, and American intervention in the region, revolutionaries, and the ideas that guided them, played a role as well. In this context, the idea of the right of nations to self-determination specifically, and the Leninist problematic more generally, suffered a terrible blow. The horrific events in Southeast Asia deepened the gnawing crisis of Leninism, which would ultimately bring down the project of anti-imperialist internationalism as such, creating a perfect opportunity for the rival human rights internationalism to take the stage.
In their opposition to American imperialism, radicals pursued many actions. They synchronized protests, helped deserting GIs find safety, strengthened ties with Vietnamese revolutionaries, put the United States on trial for genocide, and even organized international brigades to fight in Vietnam. But at this stage, they prioritized the ideological struggle, which was precisely what Vietnamese officials themselves sought most from their comrades in this part of the world. Indeed, Vietnamese revolutionaries believed that the war would be fought not only in the jungles of Vietnam but on the terrain of ideas. Collaborating closely with Vietnamese communists, radicals in the North Atlantic radicalized the discourse around the war. In fact, by the end of 1967, the general antiwar struggle grew far more radical. Radicals defined the enemy as imperialism, coded their internationalism as anti-imperialism, and revived the Leninist problematic of self-determination. This approach to internationalism became so popular that even those who did not consider themselves radicals adopted some of its core elements. By the late 1960s, anti-imperialism was beating out its many internationalist rivals – such as individualist human rights – to become the dominant way in which activists in the North Atlantic imagined international change.