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5241. The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?

Author:
Alan Desmond
Publication Date:
01-2018
Content Type:
Journal Article
Abstract:
This article critically examines the evolving practice of the European Court of Human Rights (ECtHR) towards the definition and use of the concepts of family life and private life in cases involving migrants who seek to resist deportation by invoking Article 8 of the European Convention on Human Rights. The examination reveals an approach on the part of the Court that has the effect of shrinking the protection potential of Article 8 for migrant applicants, allowing state interest in expulsion to carry the day. This is symptomatic of Strasbourg’s deference to state sovereignty in the realm of migration. While the ECtHR has issued a number of landmark rulings roundly vindicating migrants’ rights, these are the exception to the rule of Strasbourg’s deference to state powers of immigration control. This approach has far-reaching implications for migrants in the member states of the Council of Europe. The article concludes by highlighting the tools at the Court’s disposal that could be employed to construct a more human rights-consistent approach in this strand of jurisprudence, which is an issue all the more relevant in light of the growing number of migrants seeking to establish a life in Europe.
Topic:
Human Rights, International Law, Migration, Sovereignty, and Courts
Political Geography:
Europe and France

5242. Maritime Legal Black Holes: Migration and Rightlessness in International Law

Author:
Itamar Mann
Publication Date:
04-2018
Content Type:
Journal Article
Abstract:
This article explores the trope of the ‘legal black hole’ to reveal questions of legal theory arising from contemporary migrant drownings. The theme was popularized during what was then called the ‘war on terror’, but its trajectory is longer and more complex. Its material history, as well as its intellectual history within legal scholarship, suggest three distinct ‘legacies’ of legal black holes: the counterterrorism legacy; the migrant-detention legacy; and the legacy of the maritime legal black hole. The tripartite division provides a conceptual typology of instances where persons are rendered rightless. While the two former types are characterized by de facto rightlessness due to a violation of international law, the latter exposes a seldom acknowledged, yet crucial, characteristic of international law; the age-old doctrine on the division of responsibilities between states and individuals at land and at sea is now creating the conditions in which some people are rendered de jure rightless. Moreover, the typology sheds light on the specifically legal reasons for the seeming failure to end mass drowning of migrants and refugees in the Mediterranean Sea. Tracing the ways in which people become de jure rightless is ultimately suggested as a broader research agenda for scholars of international law.
Topic:
Human Rights, International Law, Migration, and Maritime
Political Geography:
Europe and Mediterranean

5243. The Return of Cultural Genocide?

Author:
Leora Bilsky and Rachel Klagsbrun
Publication Date:
04-2018
Content Type:
Journal Article
Abstract:
Cultural genocide, despite contemporary thinking, is not a new problem in need of normative solution, rather it is as old as the concept of genocide itself. The lens of law and history allows us to see that the original conceptualization of the crime of genocide – as presented by Raphael Lemkin – gave cultural genocide centre stage. As Nazi crime was a methodical attempt to destroy a group and as what makes up a group’s identity is its culture, for Lemkin, the essence of genocide was cultural. Yet the final text of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) does not prohibit cultural genocide as such, and it is limited to its physical and biological aspects. What led to this exclusion? In this article, we examine the various junctures of law, politics and history in which the concept was shaped: the original conceptualization by Lemkin; litigation in national and international criminal courts and the drafting process of the Genocide Convention. In the last part, we return to the mostly forgotten struggle for cultural restitution (books, archives and works of art) fought by Jewish organizations after the Holocaust as a countermeasure to cultural genocide. Read together, these various struggles uncover a robust understanding of cultural genocide, which was once repressed by international law and now returns to haunt us by the demands of groups for recognition and protection.
Topic:
Genocide, International Law, History, Culture, Courts, and Holocaust
Political Geography:
Europe and Germany

5244. The Legacy of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and Their Contribution to the Crime of Rape

Author:
Alexandra Adams
Publication Date:
07-2018
Content Type:
Journal Article
Abstract:
The article analyses the over 20 years’ jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda with respect to the crime of rape. It discusses how the attitude towards the prosecution of sexual crimes has changed since the Tribunals work began and what impact its jurisprudence has had on other attempts to define rape (elements of crime [EOC]). The article explores in depth the various definitions of rape given by the different chambers of both Tribunals. Consequently, it examines if the ultimate definition of the Kunarac chamber will prevail in international law. Not only are the weaknesses of the Kunarac definition that followed a pure consent approach revealed but the EOC of rape that opted for a combination of the coercion approach with one aspect of the lack-of-consent doctrine (incapacity) also face criticism. This leaves only one response – namely, that the elements of rape in international criminal law today can only be based upon a newly conducted comparison of national laws, thereby reflecting the general principles of the major legal systems of the world. The strongest accomplishment of both Tribunals concerning the crime of rape therefore lies not in the clarification of the elements of rape but, rather, in the revelation of a law-finding method, which is indispensable to the rudimentary field of international criminal law.
Topic:
International Law, War Crimes, Gender Based Violence, Courts, and Rape
Political Geography:
Europe, Yugoslavia, and Rwanda

5245. Changing State Behaviour: Damages before the European Court of Human Rights

Author:
Veronika Fikfak
Publication Date:
10-2018
Content Type:
Journal Article
Abstract:
Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.
Topic:
Human Rights, International Law, Reform, and Courts
Political Geography:
Europe and France

5246. Resisting TTIP Behind the Boarder Talks: The Case of Genetically Modified Organisms

Author:
Vinod K. Aggarwal
Publication Date:
11-2018
Content Type:
Commentary and Analysis
Institution:
Berkeley APEC Study Center
Abstract:
During negotiations of mega-regional trade agreements, state representatives have the incentive to demand that other parties align with their entrenched regulatory practices. Indeed, a country’s exporters will derive extensive benefits if negotiating partners fulfill these demands. Strictly pursuing self-interest, however, often leads to stalemate. When the United States (US) and European Union (EU) entered into negotiations of the Transatlantic Trade and Investment Partnership (TTIP), they sought to more effectively align transatlantic regulation and associated practices. Although extant literature indicates that relatively similar, rich, and developed countries should easily conclude agreements due to shared interests, negotiations between the US and EU in the regulatory area of genetically modified organisms (GMOs) deteriorated. By 2016, this matter effectively fell off the TTIP negotiating agenda.
Topic:
Science and Technology and International Affairs
Political Geography:
Global Focus

5247. Michael Higgins, President of Ireland

Author:
Michael D. Higgins
Publication Date:
04-2018
Content Type:
Video
Institution:
Columbia University World Leaders Forum
Abstract:
His Excellency Michael D. Higgins, President of Ireland, addresses the Columbia University World Leaders Forum in Low Library.
Topic:
Climate Change, Human Rights, United Nations, Neoliberalism, and Social Justice
Political Geography:
New York, Europe, and Ireland

5248. Can the EU be True to its Values?

Author:
Frans Timmermans
Publication Date:
09-2018
Content Type:
Video
Institution:
Columbia University World Leaders Forum
Abstract:
First Vice-President of the European Commission Frans Timmermans discusses current global and European challenges, including migration, populism, and threats to democracy, the media, and the rule of law at the Columbia World Leader's Forum. Recently described by the Financial Times as "Europe's champion idealist", Frans Timmermans is on the frontline of EU policy on managing migration, defending the judiciary, fighting terrorism, and harnessing globalization in the face of threats to the multilateral world order.
Topic:
Globalization, International Cooperation, Migration, Counter-terrorism, Democracy, and Populism
Political Geography:
New York, Europe, and European Union

5249. Commemorating Václav Havel: A Speech by Madeleine Albright

Author:
Madeleine Albright
Publication Date:
09-2018
Content Type:
Video
Institution:
Columbia University World Leaders Forum
Abstract:
Remarks by Former United States Secretary of State, The Honorable Madeleine K. Albright, commemorating Vaclav Hável as an intellectual, leader, and agent of change and how his legacy continues to play an important role in today’s current global landscape. Followed by a question and answer session with the audience.
Topic:
Authoritarianism, Democracy, Populism, and Political Prisoners
Political Geography:
New York, Europe, Soviet Union, and Czech Republic

5250. President of the UN General Assembly, 73rd Session

Author:
María Fernanda Espinosa Garcés
Publication Date:
10-2018
Content Type:
Video
Institution:
Columbia University World Leaders Forum
Abstract:
Her Excellency Mrs. María Fernanda Espinosa Garcés, President of the 73rd Session of the UN General Assembly, speaks at the Columbia University World Leaders Forum.
Topic:
Climate Change, Development, United Nations, and Multilateral Relatons
Political Geography:
New York and United Nations