The Evolution of International Indigenous Rights in the Inter-American Human Rights System

Indigenous communities in the Western hemisphere are increasinglyrelying on international law and international fora for enforcementof their human rights. When there are no domestic laws thatrecognise indigenous rights, or such laws exist but there isno political will to enforce them, indigenous peoples in theAmericas may turn to the Inter-American human rights system.Consequently, the Inter-American Court of Human Rights and theInter-American Commission on Human Rights have developed a progressivecase law in this area. In 2005 and 2006, the Inter-AmericanCourt decided seminal indigenous ancestral land rights casesand a political rights case. This article analyses these casesand the previous jurisprudence and decisions on indigenous rightsin the Inter-American system.     

Family Values in the Classroom? Reconciling Parental Wishes and Children's Rights in State Schools

This article examines the extent to which the law should permitdivergence in various aspects of state education by allowingschools to accede to a parent’s request for differenttreatment for his or her child. With a view to this the articleexplores some of the areas where contention is likely to occur;describes the current legal frameworks for responding to theserequests; and articulates the competing rights and interestsat stake when a parent makes a request for his or her childto be exempt from part of the education on offer at a publiclyfunded school. It emerges that the current legal responses arenot only inconsistent but are also in many instances incompatiblewith the United Kingdom’s international human rights obligations.The article concludes by suggesting a new model for the resolutionof these disputes which provides a mechanism for balancing parents’wishes with children’s rights and the broader public interestsat stake.     

Human Rights, Refugees, and The Right 'To Enjoy' Asylum

Increasingly hard-line and restrictive asylum policies and practicesof many governments call into question the scope of protectionsoffered by the 1951 Convention relating to the Status of Refugees.Has the focus on the 1951 Convention been to the detriment andsubordination of other rights and standards of treatment owedto refugees and asylum-seekers under international human rightslaw? Which standard applies in the event that there is a clashor inconsistency between the two bodies of law? In analysingthe interface between international refugee law and internationalhuman rights law, this article looks at the right to familylife and the right to work. Through this examination, contentand meaning is offered to the almost forgotten component ofthe right ‘to enjoy’ asylum in Article 14(1) ofthe Universal Declaration of Human Rights 1948.     

A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya

The cases on Chechnya recently decided by the European Courtof Human Rights force us to re-evaluate the relationship betweenhuman rights law and humanitarian law. Since the InternationalCourt of Justice held that humanitarian law is lex specialisto human rights law in 1996 – if not since the TehranConference of 1968 – it has been widely accepted that‘human rights in armed conflict’ refers to humanitarianlaw. The ECtHR has directly applied human rights law to theconduct of hostilities in internal armed conflicts. The rulesit has applied may prove controversial, but humanitarian law’slimited substantive scope and poor record of achieving compliancein internal armed conflicts suggest the importance of this newapproach.     

Constitutional law

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.     

From the Right to Return to the Return of Rights: Completing Post-War Property Restitution in Bosnia Herzegovina

Given the numbers displaced as part of the means and methodsof the armed conflict during the war in Bosnia Herzegovina between1992–95, it is not surprising that the return processhas been long and drawn out. Nevertheless, a remarkable processof post-war reconciliation has quietly drawn to completion inBosnia Herzegovina. In less than a decade after the end of thewar, over 90 per cent of the 211,871 claims for the restitutionof real property made by internally displaced persons (IDPs) and refugees have been resolved. Annex 7 of the Dayton Agreement, The Agreement on Refugees andDisplaced Persons, provided for the return of IDPs and refugees,but it was the object of obstruction in the mid to late 1990s.However, by the middle of the first decade of the 21^st century,restitution was all but complete. The significance of this turn-aroundextends far beyond the hundreds of thousands of Bosnians whobenefited directly. It is a model, both positive and negative,for the resolution of many other conflicts around the worldin which land is a major issue. While a number of factors contributedto the dramatic acceleration of the restitution process in Bosnia,certainly the unexpected staying power — and, indeed,concerted action on property restitution — of the internationalcommunity played its part. A ‘carrot and stick’strategy manifested itself in high-profile funding, admittanceto international bodies, and the removal of obstructive officials.As this paper shall argue, the greatest factor in seeing theprocess through to the end was the shift from a process thatfocused primarily upon ethnically-linked ‘return’,sometimes at the expense of individual property rights, to onethat was driven primarily by the recognition of property rightsand the rule of law. This was possible for a number of reasons.Uniquely, international human rights conventions were incorporateddirectly into post-war Bosnian domestic law. Influenced by this,legislative amendments and changes in implementation strategyprogressively slanted the process in favour of simple, almostintuitive, rights recognition. Shifting away from the emphasison ‘return’ removed a subjective element from implementationand, combined with greater emphasis on the ‘rule of law’,narrowed the scope for the system to be manipulated and thwarted.This, thereby, de-politicised restitution.     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

制度性歧视与平等权利保障机构的功能——以农民权利保障为视角

制度性歧视是指由国家的正式规则所形成或被国家的正式规则所接受和保护的歧视。城市化进程中针对农民的歧视性制度安排,主要表现在经济和社会领域。具体可分为如下几类:户籍制度;农地征用制度;社会保障制度;教育制度;就业制度等。上述歧视性的制度安排严重侵犯了农民财产权、劳动权、获得物质帮助权、教育权等基本的宪法权利。通过立法的方式建立专门的以反歧视为目的的平等权利保障机构或职能更宽泛的人权保障机构,既是国际人权法所倡导的,在世界上许多国家以及我国的香港地区已有成功的实践经验。平等权利保障机构就其功能而言,适合于以大多数农民为代表的弱势群体的生存状态和权利诉求。     

Social and legal alienation: The case of aboriginal peoples in Canada

The concept ‘alienation’ has become a relatively common expression in contemporary society, the usage of which often belies the varied meanings it has had historically and in contemporary literature. Using the sociology of knowledge, an historical analysis of the use of ‘alienation’ in law, the social sciences, and religion reveals a rich and varied tradition. ‘Alienation’ arose with a positive religious meaning and subsequently became a cornerstone for the new property rights of an emerging capitalist economic order. In this new industrial order, social critics gave a negative meaning to ‘alienation’ that became the basis for the social scientific concept. The legal freedom to alienate property has arguably led to the marginalization of certain segments of society. A specific example of this process can be found in the struggles of Aboriginal peoples against their colonizers. Through the process of legal alienation, Aboriginal peoples lost not only their land, but their culture and self-worth. In recent years, Aboriginal peoples have attempted to reduce their social alienation through a variety of de-alienation strategies, including social, political, and legal struggles. One tactic has been land claim litigation. Therefore, through efforts to obtain legal alienation of land, Aboriginal peoples strive to reduce their social alienation and oppression.     

An Inquiry into the Turkish 'School' of International Law

This paper seeks to examine major Turkish textbooks of publicinternational law, focusing particularly on a small number ofcore areas in this discipline: historical origins and basicfeatures; formal sources; main subjects; the law of territory;international law and development. These textbooks show a stronginclination towards Eurocentrism and positivism due to theirdenial of the vigour of ‘soft law’, as manifestedfor instance in UN General Assembly resolutions, and of theirmarginal treatment of ‘international law and development’.What is more, substantive issues of international law are notdiscussed in a critical way; rather the procedures of the disciplineare given priority. This is almost to suggest that Turkish internationallaw scholars hold the view that their raison d’êtreis confined to ‘technical expertise’, and that therelationship between law, other disciplines and society liesoutside their domain. In the final analysis, therefore, thehard core of issues integral to international law and havinga deep impact on international politics, such as the searchfor a New International Economic Order (NIEO), the principleof self-determination and human rights are either entirely bypassedor treated only very narrowly in Turkish international law textbooks.     

Neither Here Nor There: Temporary Admission to the UK

This article considers the lacunae in international and Europeanlaw for the protection of those who do not, or do not yet, havetheir refugee status recognised, or whose claim for asylum hasbeen refused. It examines the position of such people in theUK, where they are ‘temporarily admitted’ underprovisions of the general immigration legislation. This meansthat although their physical presence is recognised and notunlawful, they are legally considered not to have entered thecountry. Whilst historically this was a favourable positionthat might itself often lead to naturalisation, the legal positionof those on temporary admission has changed rapidly and drasticallyover the past decade as rights to work and to social securityhave been withdrawn and a programme of mass detention instigated.These developments have in turn led to attempts by those ontemporary admission to use international and European law toattain or reinstate rights and to resist removal. This articleexamines the changes to UK law and policy since the first primarylegislation dealing with asylum in 1993, in the light of internationaland European law, and suggests that they will lead a new categoryof undocumented sans-papiers in the UK.     

Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers

Organisations and scholars have recently drawn attention towhat they call a modern form of slavery, ‘domestic slavery’.Domestic workers in Europe and elsewhere live and work in appallingconditions and are vulnerable to abuse. This article describesthe problem, presents the relevant legal instruments and analysesa decision of the European Court of Human Rights, Siliadin vFrance, where France was found in breach of the prohibitionof slavery, servitude, forced and compulsory labour under theEuropean Convention on Human Rights. The paper examines thegrowing interaction between international labour law and internationalhuman rights law. It argues that the decision in Siliadin andits legal implications constitute a positive first step towardsaddressing the problem of the coercion and vulnerability ofmigrant domestic workers.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

Protección de los recursos genéticos de los pueblos indígenas en los sistemas universal e interamericano de derechos humanos

This article shows the current state of protection of genetic resources of indigenous peoples in the context of international human rights. The analysis is justified because international law, regional and international on access to genetic resources of indigenous peoples is insufficient, poor and in some cases, nonexistent. The protection of genetic resources in relation to indigenous peoples has special connotations according to its own system of human rights of these peoples, so that it seeks to investigate whether international law of human rights takes into account these ethnic particularities. In this sense, a characterization of universal and inter-American system related to genetic resources in order to identify gaps and challenges of these systems.     

The Creativity of the European Court of Human Rights

This article discusses the creative role adopted by the EuropeanCourt of Human Rights in the face of situations not envisagedby the drafters of the European Convention in the late 1940s,resulting from the inevitable evolution of societies and theirchanging ethical standards. Although the Vienna Convention onthe Law of Treaties 1969 is a constant source of inspirationto the Court for the interpretation of the Convention, the articlepoints to two new techniques of interpretation adopted by theCourt, namely the ‘living instrument’ doctrine andthe ‘practical and effective’ doctrine. An attemptis made to highlight the advantages and the weaknesses of bothof these innovative interpretational approaches. Additionally,an assessment is made of how the Court has responded to present-daydemands and maintained a balance between judicial creativityand respect for the role of member States as the key policy-makersin determining the scope of rights guaranteed by the Convention.     

Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice

Since the establishment of the Permanent Court of InternationalJustice in 1922, governments have consented to, and activelyused, an ever larger number of international and transnationalcourts, quasi-judicial dispute settlement bodies and ad hocarbitral tribunals for the settlement of disputes over the interpretationand application of rules of international law. Such judicialclarification of disputed interpretations of incomplete, intergovernmentalagreements reduces not only the negotiation costs of governmentsby delegating the clarification of contested facts and legalclaims to independent third-party adjudication. Judicial decision-makingat intergovernmental, transnational, national and private levelsalso supplements rule-making and offers citizens judicial remediesfor defending their rights and interests. Modern internationaleconomic law increasingly complements intergovernmental, legislative,and administrative governance by multilevel ‘judicialgovernance’ so as to protect rule of law more effectivelyfor the benefit of citizens (Section I). This contribution criticizesthe one-sidedly power-oriented perceptions of WTO law as ‘internationallaw among states’ (Section II) and the related perceptionsof international judges as dependent agents of states (Section III).Civil society, parliaments and democratic governments shouldencourage national and international judges to cooperate intheir legal task of interpreting citizen-oriented internationaleconomic law ‘in conformity with principles of justiceand international law’, as explicitly prescribed in theVienna Convention on the Law of Treaties (VCLT). The legal coherenceof multilevel judicial governance depends on protecting principlesof procedural as well as substantive justice and a common conceptionof ‘rule of law’ not only in intergovernmental relationsamong states, but also vis-à-vis their citizens engagedin, and benefiting from, international trade (Sections IV–VIII).     

Trade Unions, Human Rights and the BNP

The Trade Union and Labour Relations (Consolidation) Act 1992,section 174, bars trade unions from (amongst other things) excludingor expelling individuals on grounds of their membership of apolitical party. An issue has arisen about whether trade unionscan exclude or expel individuals who are members of the BritishNational Party (BNP). This article questions whether the currentrestrictions are consistent with international treaties ratifiedby the UK, and considers the human rights claims of the tradeunion and the ‘unwanted’ individuals.     

The Rights of Victims: Participation, Representation, Protection, Reparation

Victims have the right under Cambodian law to participate inthe Cambodian Extraordinary Chambers’ trials. The mannerin which they will exercise this right remains unsettled, butwill affect whether these trials are eventually fair, theirimpact on national reconciliation, and the establishment ofprecedents for future Cambodian litigation. The exercise ofvictims’ rights should be adapted to the context of trialsfor mass crimes, affecting victim participation, representation,protection and reparation.     

Market Fundamentalisms: Business Ethics at the Altar of Human Rights

In this article the author explores what he terms ‘anemergent trade-related, market-friendly paradigm of human rights’,in contrast to the paradigm of human rights enshrined in theUniversal Declaration of Human Rights (UDHR). It focuses ona reassertion of the UDHR paradigm in relation to corporategovernance and business conduct, looking specifically at theProposed Norms on the Responsibilities of Transnational Corporationsand Other Business Enterprises with regard to Human Rights (‘Norms’).The article examines, in this respect, five central themes:the intertextuality of the Norms; the ‘network’conception of trade and business conduct; ways of categorisinghuman rights obligations; duties regarding implementation ofthe Norms; and, finally, related ethical theory concerns.     

水权制度初论

本文从水权的基本含义着手 ,通过分析水权与水资源所有权在各国产生的社会经济背景以及二者之间的关系 ,将水权定位为民法上的新型用益物权 ,并进一步说明了水权在优化水资源配置、实现水资源多元价值方面的制度功能。为使水权与相关物权相互衔接和配合 ,作者从理论上探讨了水权与土地所有权及使用权、相邻权、地役权等物权制度的关系 ,并初步提出了理顺它们之间关系的立法设想。文章还探讨了水权不同于传统用益物权的特征 ,并对水权的种类、设立和取得方式以及水权贸易的具体规则提出了自己的见解