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The Crime of Genocide in General Assembly Resolutions: Legal Foundations and Effects 大会决议中的灭绝种族罪:法律基础和影响
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-07-01 DOI: 10.1093/hrlr/ngab003
M. Ramsden
The past decade has seen increased scholarly attention on the practice and latent potential of the United Nations General Assembly (‘Assembly’) to secure accountability for atrocity crimes. This increased focus has arisen primarily due to growing frustration over permanent member deadlock in the Security Council in the face of documented atrocities. One aspect of this nascent research agenda yet to be analysed is the invocation of the crime of genocide in Assembly resolutions and practice. Studies have shown the Security Council to have applied the genocide label selectively and only where aligned with the permanent members’ interests. Can the same be said about the Assembly? This article tracks the use of the genocide norm in Assembly resolutions, revealing two major functions: prescriptive and quasi-judicial. It notes that Resolution 96(I) (1946) has had a pervasive influence on the development of the crime of genocide. Still, later attempts in the Assembly to develop the genocide definition have enjoyed less success. Although the Assembly has been beset with political selectivity in the use of the genocide label, the rise of commissions of inquiry in UN practice can usefully augment a closer dialogue between their outputs and Assembly resolutions, as recent resolutions concerning alleged crimes against the Rohingya show.
在过去十年中,学术界越来越关注联合国大会(“大会”)确保追究暴行罪责任的做法和潜在潜力。这一焦点的增加主要是由于安全理事会常任理事国在面对有案可查的暴行时陷入僵局,人们越来越感到沮丧。这一尚待分析的新研究议程的一个方面是在大会决议和实践中援引灭绝种族罪。研究表明,安全理事会有选择地并且只有在符合常任理事国利益的情况下才使用种族灭绝标签。大会也可以这样说吗?本文追踪了大会决议中种族灭绝规范的使用情况,揭示了两个主要功能:规定性和准司法性。它注意到,第96(I)(1946)号决议对灭绝种族罪的发展产生了普遍影响。尽管如此,大会后来试图制定种族灭绝定义的努力收效甚微。尽管大会在使用种族灭绝标签方面一直受到政治选择性的困扰,但正如最近关于针对罗兴亚人的指控罪行的决议所表明的那样,调查委员会在联合国实践中的兴起可以有效地加强其产出与大会决议之间的更密切对话。
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引用次数: 0
Economic and Social Rights, Reparations and the Aftermath of Widespread Violence: The African Human Rights System and Beyond 经济和社会权利、赔偿和普遍暴力的后果:非洲人权制度及其他
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-06-24 DOI: 10.1093/hrlr/ngab017
Felix E. Torres
This article examines the dual responsibility of state authorities to repair past abuses and guarantee economic and social rights after episodes of widespread violence according to the jurisprudence of African human rights bodies. Two alternative frameworks underlying the practice of African bodies and human rights law more broadly are discussed. The first portrays the state as a threat to the individual, responsible for redressing the consequences of violations in breach of duties to respect and protect rights. The second understands the state as an active guarantor of rights in the aftermath of widespread abuses, responsible for improving the well-being of people affected and not affected by violence. In light of the possibilities and limitations that arise from both approaches in the African context, the article advocates the second.
本文根据非洲人权机构的判例,审查了国家当局在发生广泛暴力事件后修复过去的虐待行为和保障经济和社会权利的双重责任。更广泛地讨论了非洲机构实践和人权法的两个替代框架。第一种将国家描述为对个人的威胁,负责纠正违反尊重和保护权利义务的侵权行为的后果。第二种理解是,在广泛的虐待行为发生后,国家是权利的积极保障者,负责改善受暴力影响和未受暴力影响的人的福祉。鉴于这两种方法在非洲背景下产生的可能性和局限性,本文主张第二种方法。
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引用次数: 0
Hate Speech and the European Court of Human Rights: Whatever Happened to the Right to Offend, Shock or Disturb? 仇恨言论与欧洲人权法院:冒犯、震惊或扰乱的权利发生了什么?
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-06-12 DOI: 10.1093/HRLR/NGAB015
Jacob Mchangama, Natalie Alkiviadou
In Handyside v. The United Kingdom, the European Court of Human Rights (ECHR) held that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights protects not only expressions that are favorably received but also those that ‘offend, shock or disturb’. 1 Yet, the Court has since developed a substantial body of inconsistent case-law allowing restrictions on ‘hate speech’ that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR. Against a qualitative and quantitative backdrop, the authors argue that the Court and previously the Commission, have adopted an overly restrictive approach to hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law. Instead, jurisdictions that recognize a need to balance the freedom of expression with limits on hate speech have adopted more convincing approaches of hate speech, providing a robust protection of free speech while leaving room for the State to curtail the most extreme forms of non-violent hate speech.
在Handyside诉英国案中,欧洲人权法院认为,《欧洲人权公约》第10条规定的言论自由权不仅保护受到好评的言论,还保护“冒犯、震惊或扰乱”的言论。1然而,自那以后,最高法院制定了大量不一致的判例法,允许限制“仇恨言论”,严重质疑攻击性、令人震惊和不安的言论在多大程度上真正受到《欧洲人权公约》的保护。在定性和定量的背景下,提交人辩称,法院和以前的委员会对仇恨言论采取了过于严格的做法,未能为在有争议的问题上的政治言论提供充分的保护,包括对公职人员和政府机构的批评,并形成了一个不一致甚至武断的判例法体系。相反,承认有必要在言论自由与限制仇恨言论之间取得平衡的司法管辖区,对仇恨言论采取了更令人信服的做法,为言论自由提供了强有力的保护,同时为国家遏制最极端形式的非暴力仇恨言论留有空间。
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引用次数: 6
Pushing Past the Tipping Point: Can the Inter-American System Accommodate Abortion Rights? 突破临界点:美洲体系能容纳堕胎权吗?
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-05-29 DOI: 10.1093/HRLR/NGAB014
P. P. Zuloaga
While anti-abortion activists have been successful in pushing to restrict access to abortion across the USA, reproductive rights activists have been mobilizing across Latin America to push for the easement of strict anti-abortion policies. These opposing directions of travel have renewed interest in which human rights arguments would best support the expansion of access to abortion in Latin America. To date, progress in this area has mostly relied on understanding that the prohibition of cruel, inhuman and degrading treatment requires states to allow abortions in the direst of circumstances. However, the vast majority of women in the region who seek abortions do not qualify for the small exemptions contained in the law. Activists looking to expand abortion provisions beyond the cruelty paradigm therefore need to find arguments that can stand firm in a generally conservative Latin American region. In this search, the Inter-American System could, somewhat surprisingly, provide keys to constructing a new discourse surrounding reproductive rights based on a nuanced understanding of structural discrimination and a willingness to visibilise the suffering of women.
反堕胎活动人士成功地推动了全美范围内的堕胎限制,而生殖权利活动人士则在拉丁美洲各地动员起来,推动放宽严格的反堕胎政策。这些相反的发展方向重新引起了人们的兴趣,即哪些人权论点最能支持在拉丁美洲扩大堕胎的机会。迄今为止,这一领域的进展主要依赖于这样一种认识,即禁止残忍、不人道和有辱人格的待遇要求各国允许在最可怕的情况下堕胎。然而,该地区绝大多数寻求堕胎的妇女没有资格获得法律规定的少量豁免。因此,希望将堕胎条款扩展到残忍范例之外的活动人士需要找到能够在普遍保守的拉丁美洲地区站稳脚跟的论据。在这一探索中,美洲体系可以提供一些令人惊讶的钥匙,在对结构性歧视的细致理解和对妇女苦难的关注的意愿的基础上,构建围绕生殖权利的新话语。
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引用次数: 1
An Incremental Approach to Filling Protection Gaps in Equality Rights for Persons with Disabilities 逐步填补残疾人平等权利保护空白的方法
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-05-15 DOI: 10.1093/HRLR/NGAB013
Jane Richards
The Convention on the Rights of Persons with Disabilities (CRPD) guarantees that persons with disabilities (‘PWD’) are to be equal before and under the law. There are almost identical equality guarantees in the Canadian Charter of Rights and Freedoms and Hong Kong's mini constitution – the Basic Law. Australia boasts similar legislative equality guarantees for PWD. The CRPD Committee has interpreted the right broadly, whereas constitutional courts have taken a proportionality approach, balancing the right to substantive equality against competing concerns. The tension between these methods of rights protection means the CRPD is being positioned as an alternative model of rights protection, but it is not an alternative mechanism for enforcement. This article calls on the Committee to modify its guidance to make suggestions to state parties as to how incremental advances in rights protection can be immediately implemented, even if in the short-term, these advances fall short of full inclusion.
《残疾人权利公约》保障残疾人在法律面前和法律面前一律平等。《加拿大权利与自由宪章》和香港的小宪法《基本法》中几乎有同样的平等保障。澳大利亚对残疾人享有类似的立法平等保障。《残疾人权利公约》委员会对这一权利作了广泛的解释,而宪法法院则采取了相称的做法,在实质平等权利与相互竞争的关切之间取得平衡。这些权利保护方法之间的紧张关系意味着《残疾人权利公约》被定位为一种替代性的权利保护模式,但它不是一种替代的执行机制。该条呼吁委员会修改其指导意见,就如何立即落实权利保护方面的渐进进展向缔约国提出建议,即使在短期内,这些进展还没有完全纳入。
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引用次数: 0
Is the UN Committee on the Rights of the Child Doing Enough to Protect the Rights of LGBT Children and Children with Same-Sex Parents? 联合国儿童权利委员会在保护LGBT儿童和同性父母儿童的权利方面做得够不够?
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-05-15 DOI: 10.1093/HRLR/NGAB012
P. Gerber, A. Timoshanko
Children often face discrimination, bullying and even violence because of their sexual orientation or gender identity, as do children raised by parents who are lesbian, gay, bisexual or transgender (LGBT). This article considers what the UN Committee on the Rights of the Child is doing to protect the rights of LGBT children and children with LGBT parents. To make such an assessment, this article critically analyses the Committee’s Concluding Observations over a ten-year period, its General Comments and its Views on Individual Communications. The conclusion reached is that while the Committee has made encouraging progress in recent years when it comes to addressing LGBT related issues, there is still room for improvement in the way the Committee seeks to protect children from discrimination on the basis of sexual orientation and gender identity.
儿童经常因其性取向或性别认同而面临歧视、欺凌甚至暴力,由女同性恋、男同性恋、双性恋或跨性别者(LGBT)父母抚养的儿童也是如此。本文考虑了联合国儿童权利委员会为保护LGBT儿童和父母为LGBT的儿童的权利所做的工作。为了作出这样的评估,本文批判性地分析了委员会十年来的结论性意见、一般性意见和对个人来文的看法。得出的结论是,尽管委员会近年来在解决与LGBT相关的问题方面取得了令人鼓舞的进展,但委员会在保护儿童免受基于性取向和性别认同的歧视方面仍有改进的余地。
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引用次数: 0
Regulating Infrastructure: Human Rights and the Sustainable Development Goals in Myanmar 监管基础设施:缅甸的人权与可持续发展目标
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-05-10 DOI: 10.1093/HRLR/NGAB004
Emma J. Palmer
Infrastructure projects, including roads, railways, power, telecommunications and water facilities, are considered necessary to promote many different human rights and the Sustainable Development Goals (SDGs). Infrastructure development has been a central feature of the Myanmar government’s policies, including the Myanmar Sustainable Development Plan 2018–2030, to sustain economic growth and achieve the SDGs. As in many countries, public–private partnerships are promoted to help implement these policies. Yet, infrastructure projects have been associated with serious human rights violations, including in Myanmar. This article explores the links between infrastructure, international human rights law and the SDGs. It analyses how this relationship is governed by international, domestic, ‘soft’ law and self-regulatory mechanisms. It then assesses Myanmar’s legal and policy framework for promoting infrastructure investment and implementing the SDGs. It concludes that there is scope to further clarify responsibilities and accountability mechanisms for the human rights impacts of infrastructure investment.
基础设施项目,包括公路、铁路、电力、电信和供水设施,被认为是促进许多不同人权和可持续发展目标所必需的。基础设施发展一直是缅甸政府政策的核心特征,包括《2018-2030年缅甸可持续发展计划》,以维持经济增长并实现可持续发展目标。与许多国家一样,促进公私伙伴关系以帮助实施这些政策。然而,基础设施项目与严重侵犯人权行为有关,包括在缅甸。本文探讨了基础设施、国际人权法和可持续发展目标之间的联系。它分析了国际、国内、“软”法律和自律机制是如何管理这种关系的。然后,它评估了缅甸促进基础设施投资和实施可持续发展目标的法律和政策框架。报告的结论是,有进一步澄清基础设施投资对人权影响的责任和问责机制的余地。
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引用次数: 3
Athletes’ Freedom of Expression: The Relative Political Neutrality of Sport 运动员的言论自由:体育的相对政治中立性
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-05-10 DOI: 10.1093/HRLR/NGAB009
A. Marco
Athletes are not just sports people; they are certainly among the most prominent figures of their present time, playing an important role in shaping opinions with their power to inspire. For this very reason, athletes’ freedom of expression is strongly limited by the sport authorities in light of the fundamental principle of sport neutrality. This study analyses and questions the traditional constraints to athletes’ free speech by taking into consideration the role of human rights in sports legal order and in sporting affairs. By assuming an emerging relativization of sport political neutrality, the essay investigates the case-law concerning athletes’ freedom of expression identifying limits and perspectives of the current evolutions on athletes’ public statements, establishing to what extent a reform of the present sporting regulation on freedom of expression is needed.
运动员不仅仅是体育人;他们无疑是当今时代最杰出的人物之一,以其鼓舞人心的力量在塑造舆论方面发挥着重要作用。正是出于这个原因,根据体育中立的基本原则,运动员的言论自由受到体育当局的严格限制。本研究通过考虑人权在体育法律秩序和体育事务中的作用,分析和质疑对运动员言论自由的传统限制。通过假设体育政治中立性的相对化,本文调查了有关运动员言论自由的判例法,确定了当前运动员公开声明演变的局限性和视角,确定了在多大程度上需要对现行体育言论自由法规进行改革。
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引用次数: 3
The Arab Court of Human Rights and the Enforcement of the Arab Charter on Human Rights 阿拉伯人权法院和《阿拉伯人权宪章》的执行
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-05-05 DOI: 10.1093/HRLR/NGAB008
A. Almutawa
Under the League of Arab States’ human rights regime, Arab countries are governed by the Arab Charter of Human Rights 2004. The Charter, however, lacks an enforcement mechanism. The Statute of the Arab Court of Human Rights 2014 aims to fill this enforcement void. This article addresses the criticism that, because it fails to provide for a direct right of individual petition, the Statute is not fit for purpose. It is argued contrarily that, within the context of an Arab human rights system, the Court should be welcomed as an important step in the process of establishing an effective regime.
根据阿拉伯国家联盟的人权制度,阿拉伯国家受《2004年阿拉伯人权宪章》管辖。然而,《宪章》缺乏执行机制。2014年《阿拉伯人权法院规约》旨在填补这一强制执行空白。本条针对的批评是,由于《规约》没有规定个人请愿的直接权利,因此不符合目的。相反,有人认为,在阿拉伯人权制度的背景下,法院应受到欢迎,认为这是建立有效制度进程中的一个重要步骤。
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引用次数: 3
Article 31, 31 Years On: Choice and Autonomy as a Framework for Implementing Children’s Right to Play in Early Childhood Services 第31条,31年:选择和自主作为在幼儿服务中落实儿童游戏权的框架
IF 1.5 2区 社会学 Q2 Social Sciences Pub Date : 2021-05-05 DOI: 10.1093/HRLR/NGAB011
Yeshe Colliver, Holly Doel-Mackaway
Article 31(1) of the Convention on the Rights of the Child (CRC) provides all children, everywhere, with the right to play. The CRC is the most widely ratified international human rights treaty, yet children’s right to play is considered ‘the forgotten right’. The widespread State inaction to fulfil this right could be partly due to continued uncertainty about how to define play. This Article argues for the application a large body of recent research with the group most qualified to determine whether activities are play or not: young children. This research demonstrates that choice and autonomy are two universal and essential indicia for an activity to be experienced as play. The Article contends that the fulfilment of young children’s right to play would significantly increase if early childhood education and care (ECEC) institutions within States utilised these two indicia within daily programmed activities and in ECEC policies.
《儿童权利公约》第31条第1款规定,任何地方的所有儿童都有玩耍的权利。《儿童权利公约》是批准最广泛的国际人权条约,但儿童的游戏权被认为是“被遗忘的权利”。国家在实现这一权利方面普遍无所作为,部分原因可能是对如何定义游戏仍存在不确定性。这篇文章主张应用最近的大量研究,其中最有资格确定活动是否是游戏的群体是幼儿。这项研究表明,选择和自主是一项活动作为游戏体验的两个普遍而重要的标志。该条认为,如果各国的幼儿教育和保育机构在日常计划活动和幼儿教育和护理政策中利用这两个指标,幼儿游戏权的实现将大大增加。
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引用次数: 5
期刊
Human Rights Law Review
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