The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

The murderer is the bed: an unusual case of death by traumatic asphyxia in a hotel folding bunk bed

This paper presents the first referenced case on a death by traumatic asphyxia in a folding bunk bed. A middle-aged man was found dead in a hotel room trapped into a lower folding bunk bed where he had been sleeping after a party. The autopsy showed signs of asphyxia and excluded signs of struggle and sexual intercourse. Toxicological analyses revealed alcohol intoxication. A differential diagnosis of the manner of death including a technical study of the bed which contributed to understand the circumstances of death was made. The medico-legal investigation of the case strongly supported the hypothesis of an accidental death by traumatic asphyxia.     

The Service Conception: Just One Simple Question

It is crystal clear that the Service Conception includes at least three conditions, what I shall call: the ‘normal justification condition’, the ‘independence condition’ and the ‘dependence condition’. The overarching rationale of these conditions is that they ensure that authority is only justified when it provides the best means for the subject to conform to the reasons for action that she actually has. However, it is difficult to clarify whether Raz implicitly presupposes a fourth necessary condition. This condition might be called a ‘reliable belief condition’, that is, that the putative subject must reliably believe that the putative authority-agent satisfies the Service Conception (or more precisely, its other three conditions). In sum, the purpose of this paper is to pose Joseph Raz one simple question: is it a necessary condition of your Service Conception, that the subject believes that the authority-agent satisfies the Service Conception? As a matter of interpretation, different parts of Raz’s work appear to lead in entirely opposite directions: some parts clearly support the reliable belief condition, others do not. Regardless of Raz’s ultimate answer, however, the question reveals a broader inconsistency. Only if the Service Conception does include the belief condition will it support Raz’s claim that authority is consistent with one’s rational ‘self-reliance’, that is, acting upon one’s own judgement (including, as to who has authority). Only if the Service Conception does not include the belief condition will it support Raz’s perfectionist account of government. It seems Raz must choose between one or other.     

Differentiating Factitious from Malingered Symptomatology: the Development of a Psychometric Approach

Psychometric symptom validity assessment is becoming increasingly part and parcel of psychological and neuropsychological assessments. An unresolved and rarely addressed issue concerns the differentiation between factitious and malingered symptom presentations: present-day symptom validity tests can assess whether an examinee presents with noncredible symptomatology, but not why an examinee does so. We explored this issue by developing the Symptom and Disposition Interview (SDI); a symptom validity test that incorporates strategies intended to gauge internal incentives associated with factitious disorder. The merits of the SDI were explored and compared to a traditional symptom validity test (the Structured Inventory of Malingered Symptomatology) in two analogue studies, each with factitious and malingering conditions (n = 24–30 per condition) and a clinical control group (n = 34, n = 40). Overall, the results were positive: The SDI was as effective in detecting feigned symptom presentations as a traditional symptom validity test and superior in differentiating factitious from malingered symptom presentations. We conclude that the SDI is not ready for clinical use, but that psychometric approaches to the assessment of factitious symptomatology, such as the SDI, appear sufficiently promising to warrant future research.     

Assessment of sexual interest using a choice reaction time task and priming: A feasibility study

Purpose. We investigated the feasibility of assessing sexual interest in hetero‐ and homosexual men using two information‐processing methods, namely a choice reaction time task and priming. The participants were expected to have longer reaction times for sexually explicit when compared with non‐explicit pictures due to sexual content‐induced delay. In addition, the reaction times of the heterosexual (N=15) and homosexual (N=11) men for pictures corresponding with their sexual interest were compared to pictures not corresponding with their sexual interest. Heterosexual men were expected to have longer reaction times during the presentation of sexually explicit female as opposed to male pictures, whereas homosexual men were expected to have the opposite pattern. Method. The participants were presented either sexually explicit or non‐explicit male and female target pictures (and primes that preceded the targets in random combinations) while simultaneously performing a choice reaction time task in three phases each containing a total of 160 prime–target pairs. Results. Both expectations were confirmed in phase 1 of the study. In phase 2, the means differed in the expected way, but the effects were not significant. In phase 3, the expected effect was moderated by a complex priming effect. Conclusions. The results suggest that the choice reaction time task is a promising way of measuring sexual interest but that questions of habituation should be given more attention in future studies.     

A Discourse Called China and the PRC’s Foreign Policy and Diplomacy

On the basis of the premise that China, besides being a powerful civilization and state, is also a powerful discourse, this essay will set forth, as a preliminary analytical step, a plausible definition of the ‘Chinese mind’ by describing certain essential characteristics that have been forged in China’s classical culture and thought. When placed in the more creative sphere of discourse construction, these essential characteristics become ideological compounds of the here theorized ‘discourse called China’, whose impact is weighed up as the focal analytical point in the discursive space of the PRC’s foreign policy and diplomacy.     

State and Majority Nationalism in Plurinational States: Responding to Challenges from Below

Abstract

While calls for self-determination and independence make headlines worldwide, an often more subtle state nationalism remains an endemic condition of the modern world. In the introductory article for this Special Issue, we define state and majority nationalism we identify three challenges in the study of these phenomena, we suggest that a focus on plurinational states helps to overcome them, and we set out the conceptual, ideational and strategic dimensions of the Special Issue. We hope that this edited collection as a whole contributes to refine our understanding of state and majority nationalism and encourages scholars to engage more actively in their study.