Pub Date : 2021-10-02DOI: 10.1080/18918131.2022.2026044
K. Carlson, Jacob Livingston Slosser
ABSTRACT This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.
{"title":"When Religion Speaks: Denmark’s Face Covering Ban and European Human Rights Law","authors":"K. Carlson, Jacob Livingston Slosser","doi":"10.1080/18918131.2022.2026044","DOIUrl":"https://doi.org/10.1080/18918131.2022.2026044","url":null,"abstract":"ABSTRACT This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"385 1","pages":"420 - 439"},"PeriodicalIF":0.4,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76611074","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-02DOI: 10.1080/18918131.2021.1991619
Yong-li Zhou
ABSTRACT In the multi-nation society of China, disputes related to the beliefs and customs of indigenous communities in the process of the state’s natural resources management have been increasing because of sports activities, tourism, extractive industries, hydropower and other infrastructure constructions. From a legal pluralism perspective, with a focus on the Tibetan mountain cult in the Kawagebo (Mt. Meili) mountain area, this research argues the existence of two types of governances based on different worldview, beliefs, normative frameworks and management practices: the community spiritual governance (CSG) and the state resources governance (SRG). By analysing the institutional constraints to, and the potentials of recognising the spiritual significance of, sacred mountains and rights of indigenous communities, this research justifies a pathway of turning SRG towards a ‘rights-based governance’ for coordinating these conflicts.
{"title":"Communities’ Sacred Mountains vs. State-owned Natural Resources – Towards a Rights-based Governance of Cultural and Biological Diversity in China","authors":"Yong-li Zhou","doi":"10.1080/18918131.2021.1991619","DOIUrl":"https://doi.org/10.1080/18918131.2021.1991619","url":null,"abstract":"ABSTRACT In the multi-nation society of China, disputes related to the beliefs and customs of indigenous communities in the process of the state’s natural resources management have been increasing because of sports activities, tourism, extractive industries, hydropower and other infrastructure constructions. From a legal pluralism perspective, with a focus on the Tibetan mountain cult in the Kawagebo (Mt. Meili) mountain area, this research argues the existence of two types of governances based on different worldview, beliefs, normative frameworks and management practices: the community spiritual governance (CSG) and the state resources governance (SRG). By analysing the institutional constraints to, and the potentials of recognising the spiritual significance of, sacred mountains and rights of indigenous communities, this research justifies a pathway of turning SRG towards a ‘rights-based governance’ for coordinating these conflicts.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"72 2 1","pages":"508 - 529"},"PeriodicalIF":0.4,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89172691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-02DOI: 10.1080/18918131.2021.1997502
Juan-Pablo Perez-Leon-Acevedo, Thiago Alves Pinto
ABSTRACT The Rohingya are one of the most persecuted minorities in the world. Military campaigns conducted by Myanmar against the Rohingya have led to numerous deaths, widespread cases of sexual violence, the destruction of hundreds of villages, and the deportation of more than 700,000 people to Bangladesh. These events have triggered proceedings at the International Criminal Court (ICC). The ICC has arguably failed to address the religious dimensions of crimes and facts in some of its previous jurisprudence appropriately. The entanglement of law and religion at the ICC may lead to an impoverished ratio decidendi and disregard for the victims’ claims. We hence argue that, by disentangling law and religion in the proceedings related to the Rohingya, the ICC may be able to enhance the consideration of both elements. This approach should result in (1) appropriate fact-finding related to the Rohingya’s identity on ethnic and religious grounds as well as religious dimensions of mass atrocities; (2) attribution of criminal responsibility for serious violations of human rights, including rights related to the Rohingya’s religious identity, which constitute international crimes; and (3) reparations for victims to redress harm inflicted on them.
{"title":"Disentangling Law and Religion in the Rohingya Case at the International Criminal Court","authors":"Juan-Pablo Perez-Leon-Acevedo, Thiago Alves Pinto","doi":"10.1080/18918131.2021.1997502","DOIUrl":"https://doi.org/10.1080/18918131.2021.1997502","url":null,"abstract":"ABSTRACT The Rohingya are one of the most persecuted minorities in the world. Military campaigns conducted by Myanmar against the Rohingya have led to numerous deaths, widespread cases of sexual violence, the destruction of hundreds of villages, and the deportation of more than 700,000 people to Bangladesh. These events have triggered proceedings at the International Criminal Court (ICC). The ICC has arguably failed to address the religious dimensions of crimes and facts in some of its previous jurisprudence appropriately. The entanglement of law and religion at the ICC may lead to an impoverished ratio decidendi and disregard for the victims’ claims. We hence argue that, by disentangling law and religion in the proceedings related to the Rohingya, the ICC may be able to enhance the consideration of both elements. This approach should result in (1) appropriate fact-finding related to the Rohingya’s identity on ethnic and religious grounds as well as religious dimensions of mass atrocities; (2) attribution of criminal responsibility for serious violations of human rights, including rights related to the Rohingya’s religious identity, which constitute international crimes; and (3) reparations for victims to redress harm inflicted on them.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"47 1","pages":"458 - 480"},"PeriodicalIF":0.4,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78900346","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-02DOI: 10.1080/18918131.2021.2021665
M. Badar, Polona Florijančič
ABSTRACT The rise of political Islam since the 1970s and the lack of a robust political alternative during the Arab Spring have paved the way for the widespread issuance of accusations of unbelief or takfir against individuals, groups of people, or institutions. These pronouncements fit into the broader context of radical Islamist ideologies spread by systematic hate propaganda, and when the two converge they constitute instigation to murder. The need to address this phenomenon has arisen in states with substantive Muslim populations in order to protect essential human rights. Tunisia has chosen a head-on approach by criminalising accusations of unbelief and incitement to religious hatred and loathing as terrorist offences. While this approach can be seen as an encroachment upon the right to freedom of expression, it has to be balanced against states' positive obligations in protecting competing human rights. Drawing on the jurisprudence of the Human Rights Committee of the ICCPR and the African Commission of the ACHPR as well as literature in the field of human rights, this paper demonstrates the interrelation between the right to life, freedom from fear, security of the person, and the right to dignity, as well as their violations through unfettered takfirism.
{"title":"Killing in the Name of Islam? Assessing the Tunisian Approach to Criminalising Takfir and Incitement to Religious Hatred against International and Regional Human Rights Instruments","authors":"M. Badar, Polona Florijančič","doi":"10.1080/18918131.2021.2021665","DOIUrl":"https://doi.org/10.1080/18918131.2021.2021665","url":null,"abstract":"ABSTRACT The rise of political Islam since the 1970s and the lack of a robust political alternative during the Arab Spring have paved the way for the widespread issuance of accusations of unbelief or takfir against individuals, groups of people, or institutions. These pronouncements fit into the broader context of radical Islamist ideologies spread by systematic hate propaganda, and when the two converge they constitute instigation to murder. The need to address this phenomenon has arisen in states with substantive Muslim populations in order to protect essential human rights. Tunisia has chosen a head-on approach by criminalising accusations of unbelief and incitement to religious hatred and loathing as terrorist offences. While this approach can be seen as an encroachment upon the right to freedom of expression, it has to be balanced against states' positive obligations in protecting competing human rights. Drawing on the jurisprudence of the Human Rights Committee of the ICCPR and the African Commission of the ACHPR as well as literature in the field of human rights, this paper demonstrates the interrelation between the right to life, freedom from fear, security of the person, and the right to dignity, as well as their violations through unfettered takfirism.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"71 1","pages":"481 - 507"},"PeriodicalIF":0.4,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80412831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-02DOI: 10.1080/18918131.2021.2020487
Carola Lingaas, Gentian Zyberi
‘Religion remains undefined as a matter of international law’, claimed T Jeremy Gunn in 2003. Yet, despite the absence of a commonly agreed definition, the right to freedom of religion or belief is contained in numerous international, regional, and domestic legal provisions and intersects with various areas of law. In its Article 2, the 1948 Universal Declaration of Human Rights (UDHR) lists religion as an impermissible ground of distinction in the entitlement to human rights, meaning that religion cannot be used to prevent the entitlement of individuals to all the rights and freedoms set forth in the Declaration. Article 18 of the UDHR provides that everyone has the right to freedom of thought, conscience, and religion, which includes the freedom to change one’s religion or belief. The right comprises the freedom, either alone or in community with others and in public or private, to manifest the religion or belief in teaching, practice, worship, and observance. The freedom of religion and belief thus protects an individual’s spiritual freedom. In protecting this freedom, law engages with a person’s relationship with the transcendental.
{"title":"Special Issue on ‘Disentangling the Relationship between Religion and Law’","authors":"Carola Lingaas, Gentian Zyberi","doi":"10.1080/18918131.2021.2020487","DOIUrl":"https://doi.org/10.1080/18918131.2021.2020487","url":null,"abstract":"‘Religion remains undefined as a matter of international law’, claimed T Jeremy Gunn in 2003. Yet, despite the absence of a commonly agreed definition, the right to freedom of religion or belief is contained in numerous international, regional, and domestic legal provisions and intersects with various areas of law. In its Article 2, the 1948 Universal Declaration of Human Rights (UDHR) lists religion as an impermissible ground of distinction in the entitlement to human rights, meaning that religion cannot be used to prevent the entitlement of individuals to all the rights and freedoms set forth in the Declaration. Article 18 of the UDHR provides that everyone has the right to freedom of thought, conscience, and religion, which includes the freedom to change one’s religion or belief. The right comprises the freedom, either alone or in community with others and in public or private, to manifest the religion or belief in teaching, practice, worship, and observance. The freedom of religion and belief thus protects an individual’s spiritual freedom. In protecting this freedom, law engages with a person’s relationship with the transcendental.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"8 1","pages":"405 - 412"},"PeriodicalIF":0.4,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86871648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-02DOI: 10.1080/18918131.2021.2020451
Heiner Bielefeldt
ABSTRACT The disentanglement of state and religion can serve different purposes. On the one hand, it can lead to privatization of religion or its relegation to politically predefined spheres in society. On the other hand, disentanglement can also be in the service of providing an open space for the unfolding of religious diversity without fear and without discrimination. The article pleas for a human rights-based understanding of secularism as a necessary implication of freedom of religion or belief.
{"title":"Providing an Open Space for Diversity: The Human Rights Approach to Dealing with Religion(s)","authors":"Heiner Bielefeldt","doi":"10.1080/18918131.2021.2020451","DOIUrl":"https://doi.org/10.1080/18918131.2021.2020451","url":null,"abstract":"ABSTRACT The disentanglement of state and religion can serve different purposes. On the one hand, it can lead to privatization of religion or its relegation to politically predefined spheres in society. On the other hand, disentanglement can also be in the service of providing an open space for the unfolding of religious diversity without fear and without discrimination. The article pleas for a human rights-based understanding of secularism as a necessary implication of freedom of religion or belief.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"134 1","pages":"413 - 419"},"PeriodicalIF":0.4,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83738783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/18918131.2021.2007618
P. Amarasinghe, E. Vivaldi
It is conspicuously a general feature among the Marxian scholars to lambast the whole concept of human rights as a neoliberal phenomenon. In his famous ‘On the Jewish Question’ Marx rejected the individual rights as the reflection of the egoism in the society and that contention held its canonical status among the Marxists as the cardinal argument for their conflicting views with human rights. It is against this backdrop that Marxian scholars frame the dissent on the relationship between neoliberalism and human rights. For the past four decades, neoliberalism has reigned over both Global South and North as the dominant political project, creating significant challenges to the many aspects of Keynesian welfare state structure which arose in the post-war context. In particular, the persistent objection posed by neoliberal policymakers regarding public expenditures on social services enabled the governments to curtail socio-economic rights. In general, the concept of socio-economic rights stands antithetical to the notion of neoliberalism. At such a critical juncture the book titled Economic and Social Rights in a Neoliberal World edited by Gillian MacNaughton and Diane Frey is a gem for human rights scholarship as there is a lacuna in the literature examining the impacts of neoliberalism on socio-economic rights in different countries. It is worth noting that this volume has come up as a collective international endeavour representing different countries affected by the neoliberal policy reforms. Contributors from eight countries have provided 11 chapters covering the states of Israel, Columbia, New Zealand, South Korea, South Africa, Peru, USA, Egypt, Mexico, Ecuador, and Brazil. Situating their edited work within contemporary neoliberalism, the editors provide a brief analysis on neoliberalism in the introductory chapter, which sets out the issues that have sprung from the neoliberal agenda. The introductory chapter highlights the anomalous relationship between human rights and neoliberalism as the editors discuss how the first-generation rights civil and political rights remain compatible with neoliberalism while socio-economic rights become redundant in the neoliberal era. Gillian and Frey clearly state that their edited work intends to address three main issues: the first issue deals with identifying the ways in which the requirements of socio-economic rights conflict with neoliberalism. Second, this book tries to fathom whether economic and social rights are effective in confronting the global expansion of neoliberal ideology. The third and most important task is to assess the gravity of the impacts made by neoliberal policies in the implementation of economic and social rights. One of striking features of this edited volume lies in its efforts to take an interdisciplinary approach to the unfolding of the interaction of neoliberalism with socio-economic rights through the lenses of history, economics and law. Chapter 2 by James Hentiz, for in
{"title":"Economic and Social Rights in a Neoliberal World","authors":"P. Amarasinghe, E. Vivaldi","doi":"10.1080/18918131.2021.2007618","DOIUrl":"https://doi.org/10.1080/18918131.2021.2007618","url":null,"abstract":"It is conspicuously a general feature among the Marxian scholars to lambast the whole concept of human rights as a neoliberal phenomenon. In his famous ‘On the Jewish Question’ Marx rejected the individual rights as the reflection of the egoism in the society and that contention held its canonical status among the Marxists as the cardinal argument for their conflicting views with human rights. It is against this backdrop that Marxian scholars frame the dissent on the relationship between neoliberalism and human rights. For the past four decades, neoliberalism has reigned over both Global South and North as the dominant political project, creating significant challenges to the many aspects of Keynesian welfare state structure which arose in the post-war context. In particular, the persistent objection posed by neoliberal policymakers regarding public expenditures on social services enabled the governments to curtail socio-economic rights. In general, the concept of socio-economic rights stands antithetical to the notion of neoliberalism. At such a critical juncture the book titled Economic and Social Rights in a Neoliberal World edited by Gillian MacNaughton and Diane Frey is a gem for human rights scholarship as there is a lacuna in the literature examining the impacts of neoliberalism on socio-economic rights in different countries. It is worth noting that this volume has come up as a collective international endeavour representing different countries affected by the neoliberal policy reforms. Contributors from eight countries have provided 11 chapters covering the states of Israel, Columbia, New Zealand, South Korea, South Africa, Peru, USA, Egypt, Mexico, Ecuador, and Brazil. Situating their edited work within contemporary neoliberalism, the editors provide a brief analysis on neoliberalism in the introductory chapter, which sets out the issues that have sprung from the neoliberal agenda. The introductory chapter highlights the anomalous relationship between human rights and neoliberalism as the editors discuss how the first-generation rights civil and political rights remain compatible with neoliberalism while socio-economic rights become redundant in the neoliberal era. Gillian and Frey clearly state that their edited work intends to address three main issues: the first issue deals with identifying the ways in which the requirements of socio-economic rights conflict with neoliberalism. Second, this book tries to fathom whether economic and social rights are effective in confronting the global expansion of neoliberal ideology. The third and most important task is to assess the gravity of the impacts made by neoliberal policies in the implementation of economic and social rights. One of striking features of this edited volume lies in its efforts to take an interdisciplinary approach to the unfolding of the interaction of neoliberalism with socio-economic rights through the lenses of history, economics and law. Chapter 2 by James Hentiz, for in","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"23 1","pages":"402 - 404"},"PeriodicalIF":0.4,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88064233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/18918131.2021.1976440
I. Enemo
ABSTRACT Children make up about 43 per cent of Nigeria’s population, and it has been pointed out that they are often described as the precious products of divine providence. Unfortunately they are subjected to all forms of abuse and neglect, such as child prostitution, trafficking and forced labour, and therefore need serious protection in society. The Child Rights Act of 2003 was passed more than a decade ago to solve this problem. Unfortunately, most Nigerian children are still not enjoying some or all of the benefits of the Act. This article therefore seeks to examine the challenges still surrounding the domestication and implementation of its key provisions, mainly in Northern states, but also in other states where it is already domesticated, but not fully implemented. The article employs doctrinal and content analysis of relevant literature, and recommends massive sensitisation, awareness creation, and effective adaptation of the law by every Nigerian state.
{"title":"Challenges Still Facing the Domestication and Implementation of Key Provisions of Nigeria’s Child Rights Act of 2003","authors":"I. Enemo","doi":"10.1080/18918131.2021.1976440","DOIUrl":"https://doi.org/10.1080/18918131.2021.1976440","url":null,"abstract":"ABSTRACT Children make up about 43 per cent of Nigeria’s population, and it has been pointed out that they are often described as the precious products of divine providence. Unfortunately they are subjected to all forms of abuse and neglect, such as child prostitution, trafficking and forced labour, and therefore need serious protection in society. The Child Rights Act of 2003 was passed more than a decade ago to solve this problem. Unfortunately, most Nigerian children are still not enjoying some or all of the benefits of the Act. This article therefore seeks to examine the challenges still surrounding the domestication and implementation of its key provisions, mainly in Northern states, but also in other states where it is already domesticated, but not fully implemented. The article employs doctrinal and content analysis of relevant literature, and recommends massive sensitisation, awareness creation, and effective adaptation of the law by every Nigerian state.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"54 1","pages":"358 - 372"},"PeriodicalIF":0.4,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83402541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/18918131.2021.2004685
Ignatius Yordan Nugraha
ABSTRACT This article is intended to critically analyse the ‘public morals’ jurisprudence of the Human Rights Committee (HRC). Under the International Covenant on Civil and Political Rights, ‘protection of public morals’ can be invoked as a legitimate aim to limit various rights, such as the right to freedom of religion and freedom of expression. In this regard, the HRC has held that ‘public morals’ must be derived from many different traditions, and that limitation of rights based on public morals must be understood in light of the principles of universality of human rights and non-discrimination. However, this research has found that the HRC’s jurisprudence on public morals contains two main problems. First, it remains unclear when a moral standard can be considered as deriving from ‘many different traditions’. Second, the HRC’s interpretation is also not supported by the application of the general rule of interpretation.
{"title":"From ‘Margin of Discretion’ to the Principles of Universality and Non-Discrimination: A Critical Assessment of the ‘Public Morals’ Jurisprudence of the Human Rights Committee","authors":"Ignatius Yordan Nugraha","doi":"10.1080/18918131.2021.2004685","DOIUrl":"https://doi.org/10.1080/18918131.2021.2004685","url":null,"abstract":"ABSTRACT This article is intended to critically analyse the ‘public morals’ jurisprudence of the Human Rights Committee (HRC). Under the International Covenant on Civil and Political Rights, ‘protection of public morals’ can be invoked as a legitimate aim to limit various rights, such as the right to freedom of religion and freedom of expression. In this regard, the HRC has held that ‘public morals’ must be derived from many different traditions, and that limitation of rights based on public morals must be understood in light of the principles of universality of human rights and non-discrimination. However, this research has found that the HRC’s jurisprudence on public morals contains two main problems. First, it remains unclear when a moral standard can be considered as deriving from ‘many different traditions’. Second, the HRC’s interpretation is also not supported by the application of the general rule of interpretation.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"57 1","pages":"243 - 258"},"PeriodicalIF":0.4,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79134208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/18918131.2021.1999576
Hanna-Maria Niemi
ABSTRACT The concept of human dignity is increasingly used in legal reasoning, albeit that we still lack a clear understanding of its function in that sphere. In European countries, its use is influenced by varying national and regional European applications in courts. This article conducts a theoretically oriented empirical analysis of the case law of the two supreme courts of Finland to canvass the use of human dignity in the argumentation of these courts. The analysis is based on 92 cases from the Supreme Administrative Court and 36 from the Supreme Court that refer to human dignity in the reasoning part of the judgement. Three different uses of human dignity in legal argumentation are recognised and defined: restrictive, enabling and compensatory. These uses are arguably also recognisable in other jurisdictions. However, the compensatory use of human dignity, in the context of tort law – in the form of damages for emotional suffering – in particular, appears not to have been extensively discussed before. The article argues that the different uses of human dignity in legal argumentation reflect many ideas traditionally connected with the concept. For example, the close connections between dignity and autonomy, and dignity and vulnerability, emerge from the case law.
{"title":"The Use of Human Dignity in Legal Argumentation: An Analysis of the Case Law of the Supreme Courts of Finland","authors":"Hanna-Maria Niemi","doi":"10.1080/18918131.2021.1999576","DOIUrl":"https://doi.org/10.1080/18918131.2021.1999576","url":null,"abstract":"ABSTRACT The concept of human dignity is increasingly used in legal reasoning, albeit that we still lack a clear understanding of its function in that sphere. In European countries, its use is influenced by varying national and regional European applications in courts. This article conducts a theoretically oriented empirical analysis of the case law of the two supreme courts of Finland to canvass the use of human dignity in the argumentation of these courts. The analysis is based on 92 cases from the Supreme Administrative Court and 36 from the Supreme Court that refer to human dignity in the reasoning part of the judgement. Three different uses of human dignity in legal argumentation are recognised and defined: restrictive, enabling and compensatory. These uses are arguably also recognisable in other jurisdictions. However, the compensatory use of human dignity, in the context of tort law – in the form of damages for emotional suffering – in particular, appears not to have been extensively discussed before. The article argues that the different uses of human dignity in legal argumentation reflect many ideas traditionally connected with the concept. For example, the close connections between dignity and autonomy, and dignity and vulnerability, emerge from the case law.","PeriodicalId":42311,"journal":{"name":"Nordic Journal of Human Rights","volume":"99 1","pages":"280 - 299"},"PeriodicalIF":0.4,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79299978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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