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151. Toward a Solution to the Kurdish Question: Constitutional and Legal Recommendations

Author:
Dilek Kurban and Yılmaz Ensaroğlu
Publication Date:
06-2010
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
There is more to the dominance of “rule of law” or “supremacy of law” in a state than the mere availability of a constitution or laws, or the presence of judicial institutions. Indeed, it is a fact of history that even the bloodiest dictatorships had their idiosyncratic laws and courts. In addition, there are countless historical examples of tyrannical and oppressive policies being implemented through courts. Thus, in paying special attention to the matter, international human rights law emphasizes in the Universal Declaration of Human Rights that “…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” Article 3 of the Statute of the Council of Europe follows suit: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms…” Article 1 of the European Convention on Human Rights, in addition, states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” These and other instruments of law confer on the states substantial responsibilities for the protection of human rights. Of a state’s obligations in that regard, the most important include constitutional and legal recognition of citizens’ human rights, non-interference in individuals’ exercise of those rights as long as such exercise does not violate the freedoms of others, and protection of those rights against interventions by others. These obligations have also become sources and criteria for a state’s claim to legitimacy. In other words, states are now considered to be legitimate to the extent they recognize and protect human rights. As a matter of fact, the protection of states’ rights to sovereignty cannot hold its ground against human rights, thus no state can have recourse to the ‘non-intervention in domestic affairs’ discourse in the face of violations within that state’s borders. The judiciary is the most important mechanism that will check the compliance of government policies and practices with the law and protect citizens’ rights and freedoms. This is why all acts and transactions of the administration need to be subject to judicial review in a state where rule of law prevails. In short, the judiciary is the one and only power that will put the principle of the rule of law into practice. In order for the judiciary to serve that function, that is, to protect human rights, it is indispensable that constitutional and legal arrangements be compatible with human rights law. Put differently, implementing the principle of rule of law necessitates that the law should, instead of siding with the state, have an autonomous standing vis-à-vis the state. The law must maintain equal distance to the state and the citizen. Otherwise, it will not be able to serve its arbitral function between the two sides, and as a result, its legitimacy becomes contested. Considering Turkey in this light, one sees that the legal framework has adopted the ideology of creating a homogenous society and a modern nation, instead of securing all individuals’ rights. Founded as a modern state upon the remnants of the multi-religious, multilingual, and multiethnic Ottoman Empire, the Turkish Republic decided that it would not be possible for it to realize the plans to construct the new nation without denying room to the distinct identities. In line with the secularist and nationalist policies pursued as an outgrowth of this approach, the legal framework underwent a complete overhaul. It has become widely accepted today that Kurds were one of the primary targets of these policies. As a matter of fact, in addition to general legal and constitutional amendments necessary for a Turkey committed to human rights and the rule of law, a number of particular arrangements are also required for a lasting and democratic solution to the Kurdish Question. Constituting the main focus of this report, these arrangements can be broken down into two groups: constitutional and legal. Although the constitutional articles and legal provisions examined in detail and the regulations and statutes which occupy lesser space in the report might appear to have a general character and do not include the words “Kurd” or “Kurdish”, they are essentially instruments aiming to restrict Kurds’ fundamental rights and freedoms and practically causing indirect discrimination against the Kurds. It goes without saying that several administrative measures that do not necessitate any particular legal arrangements must also be taken to solve the Kurdish Question. Discussed as part of the debates on the ‘democratic initiative’, some of these measures include the restitution of names in Kurdish and other languages to places plastered with Turkish names, removal of nationalist slogans etched by the state onto mountain slopes in Turkey’s eastern and southeastern region, changing the militarist names given to schools in the same region, and appointment of Kurdish-speaking public servants in the region to facilitate the use of Kurdish language in accessing public services. Though they are outside the scope of this report, these administrative steps and similar others need to be negotiated upon with Kurdish political representatives and opinion leaders and put in practice soon.
Topic:
Human Rights, Law, Constitution, Legislation, and Kurds
Political Geography:
Turkey, Middle East, and Kurdistan

152. On the Road to the EU: Monitoring Equal Opportunities for Women and Men in Bosnia and Herzegovina

Publication Date:
12-2006
Content Type:
Special Report
Institution:
Open Society Foundations
Abstract:
Bosnia and Herzegovina is currently undergoing integration into the international legal order, in compliance with international and European requirements to establish a general nondiscriminatory framework and adopt gender-specific legislation and measures. This is a positive step toward possible implementation of equal opportunities for women and men, but its impact is extremely limited in everyday practices. Although the government has made significant efforts with regard to "gender mainstreaming," there is a wide gap between de jure and de facto treatment. Although most of the relevant laws have incorporated the principle of equal opportunities for women and men, in practice women usually cannot realize those opportunities in either the private or public sectors. A truly gender-sensitive policy and practice has almost completely failed to materialize in the fields of economy, employment, education, social security, health care, and women's participation in decision-making bodies in public and political life. This report is one of a seven-part series, "On the Road to the EU," prepared as part of the OSI Network Women’s Program's "Bringing the EU Home" Project. This three-year project aims to promote awareness, advocacy, and enforcement of equal opportunity legislation at the national level and to build the capacity of national actors in civil society to use EU-level gender equality mechanisms effectively. The project further aims to help increase the importance of equal opportunities on the European agenda. An assessment of the status of equal opportunities between women and men, de jure and de facto, was carried out in seven South Eastern European entities: Albania, Bosnia, Croatia, Kosovo, Macedonia, Montenegro, and Serbia. The reports were prepared in cooperation with the International Gender Policy Network.
Topic:
Gender Issues, Women, Legislation, Sexuality, Men, and Equality
Political Geography:
Bosnia and Herzegovina

153. On the Road to the EU: Monitoring Equal Opportunities for Women and Men in Albania

Publication Date:
12-2006
Content Type:
Special Report
Institution:
Open Society Foundations
Abstract:
Albania is preparing for eventual EU membership and is in the midst of bringing its legal framework in compliance with the requirements of EU directives and guidelines. In regard to gender equality, Albanian legislation has generally met priorities established in the Stabilization and Association Process (SAP) with the European Union. However, as the following report details, implementation of these laws faces major hurdles. In recent years, significant progress has been made in developing national legislation to promote the protection of women’s rights as basic human rights, and foster equality between women and men in the economy and in public life. The Albanian government has endorsed this equality by enacting the appropriate legislation, giving women equal rights and obligations with men. However, the absence of political mechanisms to effectively enforce the new laws has actually increased gender inequality, which directly impairs the process of economic development, democratization, and political stability. Without effective enforcement, gender stereotypes and traditional mentalities preserve the structural inequalities between women and men and unequal power relations between them. This report is one of a seven-part series, "On the Road to the EU," prepared as part of the OSI Network Women’s Program's “Bringing the EU Home” Project. This three-year project aims to promote awareness, advocacy, and enforcement of equal opportunity legislation at the national level and to build the capacity of national actors in civil society to use EU-level gender equality mechanisms effectively. The project further aims to help increase the importance of equal opportunities on the European agenda. An assessment of the status of equal opportunities between women and men, de jure and de facto, was carried out in seven South Eastern European entities: Albania, Bosnia, Croatia, Kosovo, Macedonia, Montenegro, and Serbia. The reports were prepared in cooperation with the International Gender Policy Network.
Topic:
Gender Issues, Women, Legislation, Sexuality, Men, and Equality
Political Geography:
Albania

154. On the Road to the EU: Monitoring Equal Opportunities for Women and Men in South Eastern Europe

Publication Date:
12-2006
Content Type:
Special Report
Institution:
Open Society Foundations
Abstract:
Women in South Eastern Europe have yet to attain full gender equality and are at severe disadvantage compared to their counterparts in the EU, according to On the Road to the EU: Monitoring Equal Opportunities for Women and Men in South Eastern Europe, a report sponsored by the Open Society Network Women's Program. Published as some of the countries in South Eastern Europe are set to join the EU or begin accession negotiations, the report provides a much-needed assessment of how the region is complying with EU standards on gender equality. Although many countries in South Eastern Europe have made progress over the past three years in bringing national laws on gender equality into line with the EU, much remains to be done. Among other findings, the report shows that more than half the women in the region are without jobs, with the highest rate of unemployment—70 percent—in Kosovo. In Croatia, which is expected to join the EU in 2010, the number of employed women has fallen by about 6.5 percent since 2000. The statistics on gender pay gaps are equally troubling. On average, women in South Eastern Europe make 25 percent less than men, with the difference rising to 80 percent in Kosovo. Other affronts to women’s rights in the workplace persist. In Macedonia, for example, the law does not prevent employers from discriminating against pregnant women and mothers. And throughout much of South Eastern Europe, women who return from maternity leave have no guarantee in resuming their previous position. Gender and age discrimination in advertisements remains widespread in Albania, Kosovo, Macedonia, and Montenegro. In Albania, for example, most advertisements for private-sector secretarial, assistant, or sales positions list a preference for women under 25, while those for managerial positions ask for men to apply. A seven-part series, On the Road to the EU was prepared as part of the Open Society Network Women’s Program's “Bringing the EU Home” Project. This three-year project aims to promote awareness, advocacy, and enforcement of equal opportunity legislation at the national level and to build the capacity of national actors in civil society to use EU-level gender equality mechanisms effectively. The project further aims to help increase the importance of equal opportunities on the European agenda. An assessment of the status of equal opportunities between women and men, de jure and de facto, was carried out in seven South Eastern European entities: Albania, Bosnia, Croatia, Kosovo, Macedonia, Montenegro, and Serbia. The reports were prepared in cooperation with the International Gender Policy Network.
Topic:
Gender Issues, Women, Legislation, Sexuality, Men, and Equality
Political Geography:
Eastern Europe and Southern Europe

155. Decision-Making in Endangered Species Management

Author:
Jonathan C. Borck
Publication Date:
05-2005
Content Type:
Journal Article
Journal:
Journal of Public and International Affairs (JPIA)
Institution:
School of Public and International Affairs (SPIA), Princeton University
Abstract:
This paper examines decisions made by the Fish and Wildlife Service (FWS), part of the U.S. Department of the Interior, to protect species under the Endangered Species Act (ESA) and to fund their recovery. Using a data set that includes scientific, economic, and political variables on vertebrates from 1989 to 1997, this paper estimates a variety of regression models of the listing and funding decisions. Although required by law to consider only scientific factors such as species’ vulnerability in its decision-making, FWS appears instead to favor visceral characteristics, such as species’ taxonomic class and size. Both criteria are defensible. Nonetheless, the paper recommends that FWS and its partner agencies acknowledge and try to resolve the inconsistencies between their legal obligations and their actual behavior to ensure more effective implementation of this important piece of environmental legislation.
Topic:
Environment, Legislation, Animals, Decision-Making, Biodiversity, and Endangered Species
Political Geography:
North America and United States of America