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361. Over-stating Palestine's UN Membership Bid?An Ethnographic Study on the Narratives of Statehood

Author:
Michelle Leanne Burgis-Kasthala
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
This study employs a select ethnography of Palestinian workers in the field of international law and human rights to explore how an epistemic community gives content and meaning to international law in its professional and personal life. Through a series of interviews conducted in the West Bank in the wake of the Palestinian attempt to gain full United Nations membership in September 2011, the article constructs a meta-narrative about the nature of international legal discourse as spoken on the Palestinian periphery. It shows how speakers of international law are required to restate or over-state the distinction between law and politics so as to sustain their hope and desire for Palestinian statehood in the face of despair about its protracted denial. The article then is an exploration about the politics of meaning making through international law and a call for methodological hybridity within the discipline of international law.
Topic:
Human Rights, International Law, Politics, and United Nations

362. International Law for a Water-Scarce World. Fresh Water in International Law. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right

Author:
Sara De Vido
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
Water has been a challenging issue over the centuries. From questions of national boundaries and navigation, quite common in the past, to the development of a human right to water, this essential element for human life has always spurred debate among international lawyers, economists, political scientists, geographers, and anthropologists. The reason may be found in the scarcity of water, a phenomenon which affects both developed and developing countries. Much has been written on the topic, but the three books under review significantly contribute to a critical analysis of some pertinent legal issues related to water. The title of each monograph reflects the purpose of the respective study. Hence, International Law for a Water-Scarce World by Brown Weiss starts from the acknowledgement that 'the fresh water crisis is the new environmental crisis of the 21st century' (at 1) and provides an integrated analysis of water law, which considers climate implications, river basins, and the availability and quality of fresh water. Boisson De Chazournes' Fresh Water in International Law investigates the status of fresh water in international law. The choice of the titles of the chapters is particularly evocative. Thus, after a chapter on regulation of fresh water use, the book continues with chapters on the 'Economization' of the law applicable to fresh water, its 'Environmentalization', followed by its 'Humanization', and 'Institutionalization Trends in Fresh Water Governance', before focusing on dispute settlement mechanisms. The use of the ending '-zation' gives the immediate impression of the evolution of the law on fresh water resources, which now includes several separate but clearly interrelated aspects. The title of the third book, written by Thielbörger, deserves attention for two elements, the first being the letter 's' inside the parentheses and the second being the adjective 'unique' used for identifying the human right to water. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right pursues a different purpose from the two other books under review which adopt a more comprehensive approach. Thielbörger's book (based on his doctoral dissertation) studies the human right to water from a comparative and international perspective, emphasizing the complexity of a right which is strictly linked to other rights but constitutes at the same time a right of its own.
Topic:
Development, Human Rights, and International Law

363. Reconfiguring the Law of Non-Refoulement: Procedural and Substantive Barriers for Those Seeking to Access Surrogate International Human Rights Protection

Author:
Mark R. von Sternberg
Publication Date:
03-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Both geographic and normative constraints restrict access to surrogate international human rights protection for those seeking a haven from serious human rights abuses. Primary among territorial restrictions has been the fall-out from the US Supreme Court's decision in Sale v. Haitian Council Centers in which the court explicitly ruled that nothing in US statutory law, or in the 1951 Convention on Refugees or its 1967 Protocol, precluded the interdiction of Haitian refugees in international waters and their return to the country of origin without an effective interview on their protection clams. This ruling is in transparent contradiction to the general international law norm of non-refoulement according to modern scholarship and emerging case law. This paper concludes that Sale should be overturned by statute as should related pre-screening practices. A new standard of “jurisdiction” should be adopted which does not depend on territorial access to a signatory state but on whether the state is exercising power in fact. Similar concerns exist with respect to safe third country agreements which often offend the international customary right of the asylum seeker to choose where his or her claim will be filed. This paper argues that the right of choice should be recognized and onward travel and admission to the country of destination allowed. This result is especially called for where return of the alien by the country of first contact raises serious concerns under the law of non-refoulement. Imbalances noted in this paper include those generated by the new terrorism related grounds of inadmissibility in the United States and the summary denial of children's asylum claims flowing from gang violence. Other questions are raised in this paper concerning work authorization and detention of asylum seekers. Access to an employment authorization Journal on Migration and Human Security document for those filing colorable claims should be recognized by statute to render US practice consistent with that of most other states. Release from detention, on the other hand, for asylum seekers has now been broadly recognized by the US Department of Homeland Security where the asylum seeker's identity can be ascertained and the claim is non-frivolous in nature. This approach is largely consistent with international law, although there have been unnecessary delays in implementing it. On the substantive law, the international customary norm of non-refoulment has been expanded considerably through the development of opinio juris by scholars and the practice of states. This paper traces efforts in Europe to develop a law of temporary refuge for those fleeing civil war situations characterized by humanitarian law violations. Similarly, case law under the European Convention of Human Rights has now come to focus on the harm the claimant would suffer as the result of conditions in the country of origin without identifying an explicit agent of serious harm. Related to these developments has been the notion of complementary protection under which relief can be conferred where the alien would suffer serious harm upon return to the home state but not for a Convention reason. These approaches have now received approval in the European Union Asylum Qualification Directive so that international protection may now be conferred either because the alien would suffer serious harm on account of the intensity of human rights violations taking place in the country of origin, or those conditions, taken in conjunction with the claimant's personal situation, support a finding that the claimant would be impacted. This paper argues that this latter standard has now been made a part of the customary norm of non-refoulement and that it should be recognized by statute as a basis for non-return and coupled with status where the new standard can be met. Such a measure would help restore the nation's commitment to human rights and humanitarian concerns.
Topic:
Human Rights, Humanitarian Aid, and Terrorism
Political Geography:
United States

364. Moving beyond a Donor-Recipient Relationship? Assessing Partnership in the Joint Africa-EU Strategy

Author:
Karen del Biondo
Publication Date:
02-2015
Content Type:
Working Paper
Institution:
The Kolleg-Forschergruppe (KFG)
Abstract:
The Joint Africa-EU Strategy (JAES), which was adopted in 2007, aimed to break with the traditional do¬nor-recipient relationship between the EU and Africa and to develop a true partnership. The concept of partnership has been central in EU-Africa relations ever since the Lomé Agreement (1975), but many have argued that it has been eroded by conditionalities and the end of special trade preferences. Ideally, a partnership is characterized by shared values, equality and trust, but are these principles reflected in the JAES? This study investigates this question by focusing on the thematic partnerships on peace and security and democratic governance and human rights. The paper argues that, despite the power asymmetries between the EU and Africa, the JAES has been characterized by equality in decision-making and by African ownership in capacity-building. However, while the JAES may objectively be based on shared values, the EU and the AU have often differed on how to apply those values in concrete situations, more particularly on the question which type of intervention is acceptable (conditionality, military intervention, etc.). Moreover, the analysis identifies a general feeling of mistrust amongst both parties in the partnership.
Topic:
Security, Human Rights, and Governance
Political Geography:
Africa and Europe

365. Integrity of Public Officials in EU Countries: International Norms and Standards

Author:
Gillian Dell, Albena Kuyumdzhieva, and Ádám Földes
Publication Date:
03-2015
Content Type:
Working Paper
Institution:
Transparency International
Abstract:
Good governance and good administration are among the core pillars that form the foundations of the European governance system. The principles of transparency and openness along with the right of citizens to receive impartial, fair and timely administrative services are embedded in the Founding Treaty of the EU and in the EU Charter of Fundamental Rights (EU ChFR). These principles are identical to the ones stipulated in the Universal Declaration of Human Rights and the Council of Europe's (CoE's) Convention for the Protection of Human Rights and Fundamental Freedoms.
Topic:
Human Rights
Political Geography:
Europe

366. More Women – But Which Women? The Rule and the Politics of Gender Balance at the European Court of Human Rights

Author:
Stéphanie Hennette Vauchez
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
Building on the heightened attention that the optic of judicial selection receives in the world of international courts, this article focuses its attention on one particular criterion that is gaining in importance in that respect: gender. By choosing the European Court of Human Rights as a case in point, the article provides a unique analysis of the history of the 2004 Resolution of the Council of Europe's parliamentary assembly that formulated a rule of gender balance on the list of candidates presented by states for the post of judge at the Court. It first unearths the dynamics that allowed the adoption of the rule as well as all of the fierce opposition it triggered as well as the ways in which counter-mobilization eventually prevailed and watered down the initial rule, with the help of states, the Committee of Ministers and the Court itself (which delivered its first advisory opinion on the topic in 2008). It then looks beyond the static analysis of the rule as a mere constraint and addresses in a more dynamic fashion the multiple interpretations, strategies and, ultimately, politics it opens up. By providing a unique qualitative, comparative and exhaustive analysis of the curriculum vitae of all the 120-odd women who were ever listed as candidates to the Strasbourg judicial bench (1959–2012), the article delivers original data and analyses both the features that women candidates put forth when listed for the job and the strategies of states with regard to the gender criterion. It concludes that while there is a strong proportion of candidates that support the notion that states do not differentiate according to gender or require different qualities from men and women candidates, there is a comparable proposition that contrarily indicates that the world of international judicial appointments is far from gender neutral.
Topic:
Human Rights and Politics
Political Geography:
Europe

367. More Women – But Which Women? A Reply to Stéphanie Hennette Vauchez

Author:
Françoise Tulkens
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
Having spent almost 14 years as a judge at the European Court of Human Rights, the author responds to and shares the critical view expressed by Hennette Vauchez in her article on the presence of women judges at the European Court of Human Rights. Some steps forward have admittedly been made through the voluntary action of the Council of Europe Parliamentary Assembly, but there has also been resistance in the implementation of these new rules. The gains are fragile and there are risks of regression. This situation confirms Kenney's analysis: women's progress is not natural, inevitable nor irreversible. A reaction is all the more necessary and urgent since, in the coming months of 2015 and subsequently, many elections of judges to the Court will take place, due in particular to the non-renewable nine-year term of office of judges introduced by Protocol No. 14 to the European Convention on Human Rights.
Topic:
Human Rights
Political Geography:
Europe

368. More Women – But Which Women? A Reply to Stéphanie Hennette Vauchez

Author:
Fionnuala Ní Aoláin
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
This article responds to a thoughtful intervention by Stéphanie Hennette Vauchez documenting the selection process for women seeking judicial appointment to the European Court of Human Rights. Written in the context of the author's experience as candidate for appointment to the Court, the analysis concentrates on the gendered dimensions of international institutional cultures, habits and practices that frame selection to judicial office as much as any formally applicable rules. I explore the ways in which ostensible access to international judicial bodies conceals the manifold ways in which Courts are coded masculine, and how female candidacy requires careful deliberation on performance, presentation and identity. Drawing on 'new institutionalism' theory, I underscore that female presence alone rarely undoes embedded institutional practices. Rather, transforming institutional practices and values must parallel female presence, thereby redefining the institution and the forms of power it exercises. The article concludes by reflecting on the importance of feminist judging, and argues that it is precisely the transformative political and legal changes sought by self-defined feminists that may stand the best chance of undoing the structures, habits and practices that continue to exclude women from being appointed and from engaging on terms of full equality when they arrive.
Topic:
Human Rights
Political Geography:
Europe

369. Holocaust Denial before the European Court of Human Rights: Evolution of an Exceptional Regime

Author:
Paolo Lobba
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
Litigation concerning domestic restrictions on Holocaust denial has produced a 30-year-long jurisprudence of the European Court and European Commission of Human Rights. In spite of solemnly declared principles on free speech, the Strasbourg organs have progressively developed an exceptional regime in this regard based on the 'abuse clause' envisaged under Article 17. Had this detrimental treatment remained confined to its original sphere, it could have perhaps been considered as a negligible issue. However, the scope of the abuse clause was extended to encompass a growing class of utterances, including the denial of historical facts other than the Nazi genocide. This piece begins by examining the Strasbourg case law on Holocaust denial, with a view to enucleating the effects, scope and conditions of applicability of the special regime based upon Article 17. Once the shortcomings implied by this detrimental discipline have been exposed, it shall be argued that all expressions should be dealt with under the ordinary necessity test, in which the abuse clause ought to operate as an interpretative principle. In the alternative, and as a minimum, the Court should pay due regard to the political and social context of the country where restrictions on free speech were enforced, setting aside the uniquely harsh treatment reserved for Holocaust denial.
Topic:
Genocide and Human Rights
Political Geography:
Europe

370. Europe and Azerbaijan: The End of Shame

Author:
Gerald Knaus
Publication Date:
07-2015
Content Type:
Journal Article
Journal:
Journal of Democracy
Institution:
National Endowment for Democracy
Abstract:
The autocratic regime of President Ilham Aliyev in Azerbaijan has managed to steal the soul of Europe’s most important human rights institution, the Council of Europe. This article reveals Azerbaijan’s hidden agenda to neutralize the “naming and shaming” strategy of the international human-rights movement, build influence through “caviar diplomacy,” and unleash a wave of repression against human-rights defenders. For the Council of Europe, whose function is to defend the European Convention of Human Rights, to align itself with a regime jailing human-rights activists is unprecedented and deeply disturbing. As the space for human-rights organizations to operate is shrinking in many parts of the world today, the capture of the Council of Europe sends a warning to all supporters of human rights, and not only in Europe.
Topic:
Diplomacy, Human Rights, United Nations, and NGOs
Political Geography:
Europe, Central Asia, Caucasus, Asia, and Azerbaijan