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Disentangling the Vernacular in Bolivia and Decolonising the Law 玻利维亚方言的分离与法律的非殖民化
IF 0.7 Q3 LAW Pub Date : 2022-02-04 DOI: 10.1163/15718115-bja10069
Jessika Eichler
This piece critically engages with the spaces of encounter between indigenous peoples and the (Bolivian) State by exploring indigenous subordination and inequalities in a socio-legal sense. It explores ‘epistemological oppression’ and ‘epistemological hesitance’ as it arises and is being responded to in i) the vernacular, in empirical realities, ii) in constitutional law and its principles, iii) and in international legal orders including indigenous peoples’ rights regimes. In a first step, indigenous knowledge is conceptualised and contextualised, understanding said encounters in the light of Bolivian constitutionalism and recent regressive indigenous politics under the intermittent right-wing government. Empirical, grassroots perspectives provide further insights into power dynamics and internalised asymmetries which become relevant to understand the knowledge-law nexus. In turn, we disentangle the constitutive elements of neo-colonial subordination, drawing on concepts of sovereignty, self-determination, citizenship and collective rights, and political recognition. Finally, hope is placed in the decolonising function of the law, international law in particular in the way it may reposition indigenous peoples vis-à-vis the State. A dedicated focus is placed on indigenous knowledge and its consideration in current jurisprudential developments. Constitutional law – Andean developments in particular – too is taken as a legal starting point for contextualising indigenous-State encounters, seen with decolonising lenses. In that sense, contemporary State architectures serve as unavoidable spaces of articulation that may reinforce neo-colonial tendencies through classical Western constitutionalism or create ambitious venues for indigenous rights to be recognised in a plural legal landscape.
这篇文章通过探讨社会法律意义上的土著从属关系和不平等,批判性地探讨了土著人民与(玻利维亚)国家之间的相遇空间。它探讨了“认识论压迫”和“认识论犹豫”的产生,并在i)白话文、经验现实、ii)宪法及其原则、iii)以及包括土著人民权利制度在内的国际法律秩序中得到了回应。第一步,将土著知识概念化和语境化,根据玻利维亚宪政和最近间歇性右翼政府领导下的倒退土著政治来理解上述遭遇。实证的、草根的视角为权力动态和内部不对称提供了进一步的见解,这与理解知识-法律关系变得相关。反过来,我们利用主权、自决、公民身份和集体权利以及政治承认等概念,理清了新殖民地从属关系的构成要素。最后,人们寄希望于法律、特别是国际法的非殖民化功能,因为它可以使土著人民相对于国家重新定位。专门关注土著知识及其在当前法学发展中的考虑。宪法——尤其是安第斯地区的发展——也被视为将土著国家遭遇置于非殖民化视角的法律起点。从这个意义上说,当代国家建筑是不可避免的表达空间,可能会通过古典西方宪政强化新殖民主义倾向,或为在多元法律环境中承认土著权利创造雄心勃勃的场所。
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引用次数: 0
Understanding the Resistance Trajectories of Land Grabbing: An Endeavour of Santals in Bangladesh 理解土地掠夺的抵抗轨迹:孟加拉国桑塔尔人的努力
IF 0.7 Q3 LAW Pub Date : 2022-02-04 DOI: 10.1163/15718115-bja10067
Ashrafuzzaman Khan
Land grabbing and resistance process are widely known phenomena across the globe. The incident of land grabbing meets various forms of resistance and conflict, as land grabbing is accompanied by violence that leads to the eviction. Accordingly, the resistance process produces diverse outcomes – successful or unsuccessful resistance to land grabs – depending on the extent of interactions. To keep that in mind, this paper focuses on ‘claim-making’ and ‘counter claim-making processes’ between the government actors and Santals in Bangladesh, employing the theoretical framework of contentious politics devised by Charles Tilly. To substantiate the resistance trajectories, the study has employed qualitative research methods, in addition to the theoretical approach of contentious politics. Therefore, the study demonstrated the failed resistance campaign (or failing) – appears to be a product of limited opportunity – exacerbated by a frame that failed to universalise the struggle, which compounded the Santal’s marginal status.
土地掠夺和抵抗过程是全球范围内普遍存在的现象。土地掠夺事件遇到了各种形式的抵抗和冲突,因为土地掠夺伴随着导致驱逐的暴力。因此,抵抗过程产生不同的结果——成功或不成功地抵抗土地掠夺——取决于相互作用的程度。为了记住这一点,本文采用查尔斯·蒂利(Charles Tilly)设计的争议政治理论框架,将重点放在孟加拉国政府行为者与Santals之间的“索赔”和“反索赔过程”上。为了证实抵抗轨迹,本研究除了采用争议政治的理论方法外,还采用了定性研究方法。因此,研究表明,失败的抵抗运动(或失败)-似乎是有限机会的产物-由于未能普及斗争的框架而加剧,这加剧了Santal的边缘地位。
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引用次数: 0
The Recognition of the Special Relationship of Indigenous Peoples with their Environment under International Law 国际法承认土著人民与其环境的特殊关系
IF 0.7 Q3 LAW Pub Date : 2022-02-04 DOI: 10.1163/15718115-bja10068
Charlotte Renglet
Indigenous peoples are amongst the most affected by climate change. Its effects threaten the very survival of their cultural identity which revolves around a strong connection to their ancestral lands and natural resources. Indigenous peoples have thus played a prominent role in the recent development of international human rights-based climate litigation. Against this background, this paper examines their specific status and legal tools in this regard. It first recalls how they obtained the recognition of their special relationship with their natural environment as well as specific environmental rights under international law, both in specific instruments of protection of indigenous peoples’ rights and under general human rights law. After emphasizing their significant role in advancing environmental protection under international human rights law, the article then enquires whether the recognised environmental component of indigenous peoples’ fundamental rights might allow them to develop stronger substantive legal arguments in human rights-based climate litigation.
土著人民是受气候变化影响最大的群体之一。它的影响威胁到他们与祖传土地和自然资源紧密相连的文化特性的生存。因此,土著人民在最近国际人权气候诉讼的发展中发挥了突出作用。在此背景下,本文探讨了其在这方面的具体地位和法律工具。它首先回顾了土著人民是如何在保护土著人民权利的具体文书和一般人权法中获得承认其与自然环境的特殊关系以及国际法规定的具体环境权利的。在强调了他们在根据国际人权法推进环境保护方面的重要作用之后,文章随后询问了土著人民基本权利中公认的环境成分是否可以使他们在基于人权的气候诉讼中发展出更有力的实质性法律论据。
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引用次数: 1
International Journal on Minority and Group Rights 少数民族和群体权利国际杂志
IF 0.7 Q3 LAW Pub Date : 2021-12-30 DOI: 10.1163/15718115-29010002
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引用次数: 1
From Hell to High Water: The Life of Rohingya Refugee Women in Bangladesh 《从地狱到高潮:孟加拉国罗兴亚难民妇女的生活》
IF 0.7 Q3 LAW Pub Date : 2021-12-29 DOI: 10.1163/15718115-bja10066
Mahanam Bhattacharjee Mithun
Bangladesh is currently hosting nearly a million Rohingya refugees from Myanmar and more than half of the refugee population comprises women. In Myanmar, due to the government-imposed securitization and relatively conservative culture, Rohingya women were not able to enjoy their rights and freedom and were mainly confined to their homes. Upon arriving in Bangladesh, they are facing additional challenges. This article aims to find the underlying causes that alienated women from enjoying their rights and whether the life of the Rohingya women has improved or not in Bangladesh. This article shows that, due to the lack of a women-friendly environment inside camps, gender norms and malpractices, breakdown of family ties, and increased number of gender-based violence against women, they are more vulnerable than ever. This paper argued that humanitarian organization and the government should promote gender mainstreaming towards bringing refugee women into the community decision-making process along with raising awareness among the Rohingya community.
孟加拉国目前收容了近100万来自缅甸的罗兴亚难民,其中一半以上的难民是女性。在缅甸,由于政府强制实行的证券化和相对保守的文化,罗兴亚妇女无法享受自己的权利和自由,主要被限制在家中。抵达孟加拉国后,他们面临着额外的挑战。本文旨在找出导致女性无法享受其权利的根本原因,以及孟加拉国罗兴亚女性的生活是否得到了改善。本文表明,由于难民营内缺乏对妇女友好的环境,性别规范和不当行为,家庭关系破裂,以及基于性别的暴力侵害妇女行为增加,她们比以往任何时候都更加脆弱。本文认为,人道主义组织和政府应推动性别主流化,将难民妇女纳入社区决策过程,同时提高罗兴亚社区的意识。
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引用次数: 1
Bolivian Indigenous Groups’ Legal Agency: What does it Entail? 玻利维亚原住民团体的法律代理:它需要什么?
IF 0.7 Q3 LAW Pub Date : 2021-12-28 DOI: 10.1163/15718115-bja10063
Miguel Camilo Cuba Pinto
The uniquely novel constitutional setting in Bolivia establishes the recognition of indigenous collective rights, indigenous jurisdictions, and indigenous institutions. However, many indigenous groups are uncomfortable with this judicial machinery, which portrays them as vulnerable groups before the legal system. This article highlights the Bolivian indigenous groups’ dissatisfaction and proposes a conceptual framework to address the apparent legal inequality from a socio-legal approach.
玻利维亚独特新颖的宪法背景确立了对土著集体权利、土著管辖权和土著机构的承认。然而,许多土著群体对这种司法机制感到不安,因为这种机制将他们描绘成法律制度面前的弱势群体。本文强调了玻利维亚土著群体的不满,并提出了一个概念框架,从社会法律角度解决明显的法律不平等问题。
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引用次数: 0
From Concealment of their Faith to Active Propagation of their Faith: Afghanistan’s Christians and its Diaspora Community 从隐藏信仰到积极传播信仰:阿富汗基督徒及其散居社区
IF 0.7 Q3 LAW Pub Date : 2021-12-20 DOI: 10.1163/15718115-bja10065
Hafizullah. Emadi
Although Afghanistan is predominantly a Muslim country, the Christian faith has found adherents in the country. Prior to building a church the community gathered in a designated house to practice their faith. After a church was established members of the community, Christian expatriates and members of the diplomatic community attended religious services there. The number of Muslim converts grew over time and each had a mission to convert fellow friends to the faith. Muslim converts were careful not to disclose their faith to anyone unless they had full trust in that person knowing that he will not disclose their identity even if they did not embrace the faith. The situation of the Christian community improved somewhat during the constitutional monarchy (1963–1973) as the 1964 Constitution allowed freedom of expression and of association, etc. The community remained quiet and exercised caution in practicing their faith during the republic an regime (1973–1978). Political repression after the establishment of the pro-Soviet regime in April 1978 and subsequent Soviet invasion (December 1979-February 1989) caused a number of Christians to leave to the safety of Pakistan and India trying to seek asylum to countries in the West. In exile, Muslim converts become active in organizing themselves and propagating the faith through translation of Christian literature to the Persian language and making them available to their fellow countrymen.
虽然阿富汗主要是一个穆斯林国家,但基督教信仰在该国也有信徒。在建造教堂之前,这个社区聚集在一个指定的房子里实践他们的信仰。社区成员建立教堂后,基督教侨民和外交社区成员在那里参加宗教仪式。随着时间的推移,穆斯林皈依者的数量越来越多,每个人都有一个使命,让朋友们皈依伊斯兰教。穆斯林皈依者小心翼翼地不向任何人透露他们的信仰,除非他们完全信任那个人,知道即使他们不信奉这种信仰,他也不会透露他们的身份。在君主立宪制时期(1963-1973),由于1964年宪法允许言论自由和结社自由等,基督教社区的情况有所改善。在共和国政权(1973-1978年)期间,该社区保持安静,谨慎地实践他们的信仰。1978年4月亲苏政权成立后的政治镇压和随后的苏联入侵(1979年12月至1989年2月)导致一些基督徒离开到巴基斯坦和印度的安全地区,试图在西方国家寻求庇护。在流亡期间,穆斯林皈依者积极组织自己,并通过将基督教文学翻译成波斯语,并将其提供给同胞,来宣传信仰。
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引用次数: 0
National Human Rights Institutions and Access to Justice for National Minorities in Europe 欧洲国家人权机构和少数民族诉诸司法的机会
IF 0.7 Q3 LAW Pub Date : 2021-12-20 DOI: 10.1163/15718115-bja10062
Vincenzo Tudisco
This article focuses on the role that National Human Rights Institutions play in guaranteeing access to justice for national minorities. Based on the osce hcnm Graz Recommendations on Access to Justice and National Minorities, this study aims at identifying commons issues and good practices by comparing rules and practices concerning minority representation in nhris, nhris’ focus on national minority issues, and nhris’ role in providing access to justice for national minorities. Separate subsections cover collective-groups’ complaints and the relevance of groups during investigations; regional offices; and websites, languages, and online complaints. The conclusion highlights that protecting access to justice for national minorities entails both more ‘focus’ and ‘access’. More focus should be guaranteed by relevant legislation and nhris’ annual reports through separate chapters or sections on minorities. More access includes minority representation in nhris, regional offices, groups’ complaints, multilingual and easy-to-access websites, as well as online tools for complaints.
本文的重点是国家人权机构在保障少数民族获得司法救助方面发挥的作用。根据欧安组织人权理事会关于诉诸司法和少数民族的格拉茨建议,本研究旨在通过比较有关少数民族在人权机构中的代表性的规则和做法、人权机构对少数民族问题的关注以及人权机构在为少数民族提供诉诸司法方面的作用,确定共同问题和良好做法。单独的小节涵盖了集体团体的投诉和调查期间团体的相关性;区域办事处;还有网站、语言和网上投诉。该结论强调,保护少数民族诉诸司法的机会需要更多的“关注”和“获取”。相关立法和人权机构的年度报告应通过单独的章节或章节来保障对少数民族的更多关注。更多的途径包括少数民族在国家人权机构、区域办事处、群体投诉、多语言和易于访问的网站以及在线投诉工具中有代表性。
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引用次数: 0
Indigenous Peoples and Traditional Local Communities’ Mobilisation to Regain Control: The Role of Human Rights 土著人民和传统地方社区的重新控制动员:人权的作用
IF 0.7 Q3 LAW Pub Date : 2021-11-22 DOI: 10.1163/15718115-bja10053
H. M. Haugen
The article reviews trends in international non-binding standards:1) the equalisation of indigenous peoples and local communities as rights-holders;2) the strength and weakness of the safeguards approach in the context of redd+;3) the wide definition of who constitutes stakeholders; and 4) the scope of a due diligence requirement.The article identifies and discusses two approaches:1) mobilisation, understood as political or legal pressure exerted upon endogenous actors by other endogenous actors, and where international human rights serve as the norm basis for this pressure. 2) control, implying that power asymmetries in relation to external actors are challenged by alliances with human rights organisations and environmental organisations. Both benefit from being embedded in human rights principles: dignity, non-discrimination, rule of law, accountability, transparency, participation and empowerment. Human rights might, however, lead to tensions internally, as these principles can conflict with customary and exclusionary decision-making procedures.
这篇文章回顾了不具约束力的国际标准的趋势:1)土著人民和地方社区作为权利持有者的平等地位;2) redd+背景下保障措施方法的长处和短处;3) 利益相关者的广泛定义;以及4)尽职调查要求的范围。本文确定并讨论了两种方法:1)动员,被理解为其他内生行为者对内生行为者施加的政治或法律压力,以及国际人权是这种压力的规范基础。2) 控制,意味着与外部行为者的权力不对称受到与人权组织和环境组织联盟的挑战。两者都受益于融入人权原则:尊严、不歧视、法治、问责制、透明度、参与和赋权。然而,人权可能会导致内部紧张局势,因为这些原则可能与习惯性和排他性决策程序相冲突。
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引用次数: 0
Between Anglophone and Francophone Cameroon 英语和法语之间的喀麦隆
IF 0.7 Q3 LAW Pub Date : 2021-11-22 DOI: 10.1163/15718115-bja10058
E. H. Nfobin, N. V. Minang
In 2016, the reputation for stability of the Republic of Cameroon, a state made up of Francophones that constitute the majority (three quarters of the population of 25000000) and Anglophones that constitute a minority abruptly came an end when Anglophone secessionists took up arms to fight for the independence of the former Southern Cameroons. It was no surprise to keen observers of the Cameroon political scene in the last decades, If the government of the day is determined to give what it will take to keep the country united, the secessionists are equally convinced of the rectitude of their cause which they base on the principle of self-determination in international law, contesting the legality of the UN-organised plebiscite of!961 that led to the Reunification of the country. This paper assesses the legality of the claims of the protagonists for better information of all the stakeholders in the ongoing conflict..
2016年,当说英语的分裂主义者拿起武器,为前南喀麦隆的独立而战时,喀麦隆共和国稳定的声誉突然结束了。喀麦隆共和国是一个由占多数的法语国家(占2500万人口的四分之三)和占少数的英语国家组成的国家。对于过去几十年喀麦隆政治局势的敏锐观察者来说,这并不奇怪,如果当今政府决心尽一切努力保持国家统一,分裂主义者同样相信他们的事业是正确的,他们基于国际法的自决原则,质疑联合国组织的公民投票的合法性!导致国家统一的961年战争。为了更好地了解正在进行的冲突中的所有利益相关者,本文评估了主角索赔的合法性。
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引用次数: 0
期刊
International Journal on Minority and Group Rights
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