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381. Bridging Comparative and International Law: Amicus Curiae Participation as a Vertical Legal Transplant

Author:
Anna Dolidze
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Legal transplants scholarship has thoroughly examined the transnational diffusion of legal institutions. Although Article 38 of the Statute of the International Court of Justice acknowledges that international law draws upon domestic legal systems, the exchange of legal institutions between states and international law has yet to receive similar treatment. This article highlights the process of vertical diffusion – that is, the borrowing of legal institutions between the nation-state and international law. Vertical diffusion takes place in two forms: downward and upward diffusion. Scholarship on the internalization and vernacularization of international law has highlighted the process of downward diffusion. This article offers a theory of internationalization of law and the emergence of internationalized legal transplants. It draws on a study of the internationalization of the amicus curiae participation procedure from the United Kingdom to the European Court of Human Rights. Three main conditions must be present for internationalization: the institution’s structural transformation that results in a law-making opportunity, norm entrepreneurs, and access to the decision-making body. The study of internationalized legal transplants is important to have a more fine-grained perspective on the making of international law. The evidence of the diffusion of legal institutions between domestic law and international law also creates a bridge between international law and comparative law scholarship.
Topic:
Human Rights, International Law, Legal Theory, and Courts
Political Geography:
United Kingdom, Europe, and France

382. Domestic Violence as a Human Rights Issue: Rumor v. Italy

Author:
Ronagh J.A. McQuigg
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article focuses on the recent developments concerning domestic violence within the context of the Council of Europe. Since 2007, the European Court of Human Rights has issued a series of important judgments in cases involving domestic violence. The most recent of these is Rumor v. Italy, in which the Court issued its judgment on 27 May 2014. The article analyses this case in the context of the Court’s previous jurisprudence on domestic violence. In addition, on 1 August 2014, the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence entered into force, and the article will include a number of reflections on the potential held by this Convention. No violation of the European Convention on Human Rights was found in Rumor; however, the question of whether Italy would have been in breach of the provisions of the new Convention, to which it is a party, had this Convention been in force at the time of the relevant events, will be examined.
Topic:
Human Rights, International Law, Women, Gender Based Violence, and Courts
Political Geography:
Europe and Italy

383. EJIL Editors’ Choice of Books 2015

Author:
Sarah Nouwen, Christian Tams, Jan Klabbers, and Jean d'Aspremont
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
At the end of 2014, we invited the EJIL Board members to reflect on the books that had had a significant impact on them during the year. Their contributions, posted on EJIL: Talk!, were met with great interest and curiosity. As the end of another year approaches, we decided once more to invite our Board members to look back on their reading in 2015. In the following pieces Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont write about the books they read or re-read this year and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.
Topic:
Human Rights, International Law, History, and Courts
Political Geography:
Africa, Europe, and South Sudan

384. Tool 8: Integrating Gender in Security Sector Reform and Governance (Toolkit for Security Sector Reform and Governance in West Africa)

Author:
Aisha Fofana Ibrahim, Alex Sivalie Mbayo, and Rosaline Mcarthy
Publication Date:
01-2015
Content Type:
Policy Brief
Institution:
Geneva Centre for Security Sector Governance (DCAF)
Abstract:
Gender equality is an international norm that stipulates the equal right of women, men and gender minorities to access opportunities and resources, regardless of the sex with which they were born and the gender with which they identify. In the context of the security sector, this means that women and men should have equal opportunities to participate in the provision, management and oversight of security services, and that the security needs of women, men, boys and girls should be equally considered and effectively responded to. While ECOWAS recommends that the specific security and justice needs of men and women, boys and girls are fully integrated into all reform processes and governance mechanisms applicable to the security sector, the transition from theory to practice often proves challenging. Tool 8 of the Toolkit for Security Sector Reform and Governance in West Africa is designed to provide practitioners with action-oriented guidance for tackling this challenge. It may be most useful to national actors involved in the governance of security institutions and to those who partake in democratic oversight. This Tool aims to facilitate the identification of effective entry points for integrating the aims of gender equality in national legislation, strategies and budgets for security; in the management of security institutions; in the delivery of justice and security services and in national defence; as well as at all stages of internal and external oversight of the security sector.
Topic:
Security, Gender Issues, Human Rights, Women, Inequality, and LGBT+
Political Geography:
Geneva, Africa, United Nations, Liberia, West Africa, and Sierra Leone

385. Survivors Speak: Reflections on Criminal Justice System Responses to Domestic Violence in Bosnia and Herzegovina

Author:
Majda Halilović and Heather Huhtanen
Publication Date:
01-2015
Content Type:
Special Report
Institution:
Geneva Centre for Security Sector Governance (DCAF)
Abstract:
Domestic violence has increasingly been recognized as a societal problem and a criminal act as opposed to a private family matter. This is demonstrated by legislation that criminalizes acts of family violence and promotes gender equality and human rights. The question remains, however, whether criminal justice system professionals (police, prosecutors and judges) are applying existing legislation intended to hold perpetrators accountable, protect victims and their children and ultimately interrupt the damaging intergenerational pattern of domestic violence. This research explores the experiences of survivors of systematic domestic violence and contrasts those stories with common theories on the causes of domestic violence and criminal justice system practices in Bosnia and Herzegovina. The resulting publication reveals the extent to which systematic domestic violence is not appreciated as a serious criminal violation, and as a result, places victims, their children and the community at increased risk. Survivors Speak goes on to concretely identify evidence based risk factors within cases of domestic violence, validated through qualitative research in BiH. These risk factors can be used by criminal justice system professionals to appropriately assess and tailor the police, prosecutorial and judicial response to domestic violence, thereby enhancing victim and community safety and interrupting the intergenerational cycle of domestic violence
Topic:
Crime, Gender Issues, Human Rights, Law Enforcement, Gender Based Violence, Memory, and Violence
Political Geography:
Geneva, Europe, Eastern Europe, and Bosnia and Herzegovina

386. Challenges and Opportunities of Globalization for the Development of Human Rights in Pakistan 2010-2014

Author:
Azhar Rashid and Muhammad Arshad Watoo
Publication Date:
07-2015
Content Type:
Journal Article
Journal:
South Asian Studies
Institution:
Department of Political Science, University of the Punjab
Abstract:
Globalization is a growing phenomenon in the contemporary times when man has become modern in its thinking, actions and evaluation. Growing awareness regarding human rights is not only bringing human into mainstream affairs being major stakeholders indirectly but also greater expectations. This reality of preservation of human rights has brought the issue into legislation to make it law as a written part of the constitution at national, regional and global level in almost all spheres. Consequently, assurance of human fundamental rights is ground reality and written part of all the constitutions of the world. Globalization has transformed the world into a global village where there are commonalities of the cultures, exchange of ideas and free economic approaches are struggling to bring consensus among the world society to protect and preserve the human rights against any violation. World has divided into two blocks global north and global south based on their economic and political capacities. Globalization phenomenon was started by global north so it augurs well for the advancement of their interests while South is less benefited because of having underdeveloped status and weaker rule of law, social, economic and political condition. There are disparities of resources between both the blocks that are why south is suffering and north is maintaining status quo. State like Pakistan being the part and parcel of global south is facing economic and political hurdles where there is no provision of basic human requirements like food, health, education, employment and socio-economic stability. Globalization is north-centered phenomenon and more beneficial for them as compare to south. Globalization has positives and negatives. On one side it is providing awareness about the human rights violations while on other side it seems unable to protect human rights violations. Human rights violation scale is growing in Pakistan where there is nationalistic economy that is anti-thesis of the globalization and free market economy of north. Moreover, weak socio-economic and political conditions in Pakistan causing deprivations and grievance are growing where a specific chunk of society is violating all norms and rules of human rights by using their economic power and social status. In comparison to internationalization of economies under the umbrella of globalization, limited weightage is given to Pakistani exports in international market as compare to exports that proves very costly with the emergence of issue balance of payment that causes severe economic implications on Pakistan economy where social and political sector already going downwards and lacking to provide basic needs of life and fundamental rights. Labor issues and forced labor menace is growing in Pakistan where there are less facilities and larger number of labor and phenomenon of brain drain is growing. Globalization is impacting Pakistan more in a negative way and less in positive way. In this phase of initial years of second decade of twenty first century, human rights violation has decreased due to constitutional protection, media campaigns, role of NGO’s but still long way to go ahead to curb the menace.
Topic:
Development, Globalization, Human Rights, and Labor Issues
Political Geography:
Pakistan, South Asia, and Punjab

387. Penal Policies and Institutions in Turkey: Structural Problems and Potential Solutions

Author:
Berkay Mandıracı
Publication Date:
03-2015
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
Penitentiaries and penal policies have been one of the many areas subjected to changes in the context of the judicial reform taking place in Turkey over the last several years. Officials have been inspired to develop new policies in this field by a number of factors: the rise in the number of inmates and the resulting capacity problem; the inefficacy of outdated municipal prisons; and the need to support the resocialization of inmates through new penal policies. Efforts to increase the resocializing impact of the penal system in Turkey and the mentality transformation aiming at overcoming the historical baggage the penal system carries in Turkey are positive. However, these have not yet produced satisfactory results. This is why human rights violations in penitentiaries in Turkey are still continuing. This report argues that the general aim of the penal regime should be based on ‘resocialization’. Therefore, individuals after going through all stages of the penal process and after facing their crime, should be given the opportunity to fully participate in society again. With this perspective the report assesses the current penal reform process in Turkey and puts emphasis on the need for a holistic penal regime that focuses on resocialization of offenders in all penal stages and applies international human rights standards.
Topic:
Human Rights, Prisons/Penal Systems, Reform, Criminal Justice, and Justice
Political Geography:
Turkey and Middle East

388. Crimea: Its Politics, Economy, and Resources

Author:
Yulia Tyshchenko
Publication Date:
05-2015
Content Type:
Working Paper
Institution:
Arnold A. Saltzman Institute of War and Peace Studies
Abstract:
This article examines certain questions and challenges pertaining to the Russian Federation’s illegal annexation of Crimea in the domains of security and the violation of both property rights and human rights, abuses of which are systemic in the region. The issues I will discuss, pertaining to the illegal nationalization of private and state property in the annexed region of Ukraine, are problems that entangle the Russian Federation in complex land relations, which have the potential to fuel conflict. This article examines human rights violations linked with the annexation of the Crimea. Problems have arisen concerning the persecution of different ethnic and national groups—namely, Crimean Tatars and Ukrainians—by Crimean and Russian authorities. Currently, both Ukraine and the international community lack significant opportunities to influence Crimea’s politics and economy.
Topic:
Political Violence, Human Rights, International Political Economy, and International Security
Political Geography:
Russia, Ukraine, and Crimea

389. The Power of Staying Put: Nonviolent Resistance Against Armed Groups in Colombia

Author:
Juan Masullo
Publication Date:
08-2015
Content Type:
Special Report
Institution:
International Center on Nonviolent Conflict (ICNC)
Abstract:
Confronted with civil war, local civilians typically either collaborate with the strongest actor in town or flee the area. Yet civilians are not stuck only with these choices. Collectively defying armed groups by engaging in organized nonviolent forms of noncooperation, self-organization and disruption is another option. This monograph explores this option through sustained and organized civil resistance led by ordinary peasants against state and non-state repressive actors in Colombia’s longstanding civil war: the case of the Peace Community of San José de Apartadó.
Topic:
Human Rights
Political Geography:
Global Focus

390. The Tibetan Nonviolent Struggle: A Strategic and Historical Analysis

Author:
Tenzin Dorjee
Publication Date:
09-2015
Content Type:
Commentary and Analysis
Institution:
International Center on Nonviolent Conflict (ICNC)
Abstract:
Contrary to a perception—fueled by Chinese propaganda during the 2008 Tibetan uprising that the Tibetan struggle is heading toward extremism—this study shows that the movement for Tibetan freedom has since the 1950s moved toward a tighter embrace of nonviolent resistance. The study traces this evolution, analyzing the central themes, purposes, challenges, strategies, tactics and impacts of three major Tibetan uprisings over the past six decades. Tibetans are now waging a quiet, slow-building nonviolent movement, centered on strengthening the Tibetan national and cultural fabric via what the author refers to as “transformative resistance.” This is happening in an immensely repressive political environment, which shows that there is a way to mobilize people power against even one of the most ruthless regimes in the world.
Topic:
Human Rights
Political Geography:
Tibet