As constitutional law globalizes, the quest for a common grammar or 'generic constitutional law' becomes more pressing. Proportionality is one of the most prominent and controversial components of the modern, global constitutional discourse. In view of the alarming tension between the triumphant success of proportionality and the severity of the criticism directed towards it, this book offers an in-depth analysis of the critics of proportionality and demonstrates that their objections against the proportionality test are not convincing. It clarifies and further develops the current theories of proportionality and balancing. Building upon on Robert Alexy's predominant principles theory, the book suggests several modifications to this theory. Drawing examples from the case law of the European Court of Human Rights, the European Court of Justice, and various national constitutional courts it illustrates the argument in favour of proportionality and demonstrates its relevance for deciding concrete cases.

The United Nations Human Rights Council was created in 2006 to replace the UN Commission on Human Rights. The Council's mandate and founding principles demonstrate that one of the main aims, at its creation, was for the Council to overcome the Commission's flaws. Despite the need to avoid repeating its predecessor's failings, the Council's form, nature and many of its roles and functions are strikingly similar to those of the Commission. This book examines the creation and formative years of the United Nations Human Rights Council and assesses the extent to which the Council has fulfilled its mandate. International law and theories of international relations are used to examine the Council and its functions. Council sessions, procedures and mechanisms are analysed in-depth, with particular consideration given to whether the Council has become politicised to the same extent as the Commission. Whilst remaining aware of the key differences in their functions, Rosa Freedman compares the work of the Council to that of treaty-based human rights bodies. The author draws on observations from her attendance at Council proceedings in order to offer a unique account of how the body works in practice. The United Nations Human Rights Council will be of great interest to students and scholars of human rights law and international relations, as well as lawyers, NGOs and relevant government agencies.

The book explores the current role of nationality from the point of view of international law, reassessing the validity of the 'classical', state-centered, approach to nationality in light of the 'new' role the human being is gradually acquiring within the international legal order. In this framework, the collection assesses the impact of international human rights rules on the international discourse on nationality and explores the significance international (including private international) law attaches to the links individuals may establish with states other than that of nationality. The book weighs the significance of the bond of nationality in the context of regional integration systems, and explores the fields of international law in which nationality still plays a pivotal role, such as diplomatic protection and dispute settlement in international investment law. The collection includes contributions from legal scholars of different nationalities and academic backgrounds, and offers an excellent resource for academics, practitioners and students undertaking advanced studies in international law.

Due to the growing impact of China on world affairs how Chinese history has affected its current development in the field of human rights and law is generating great interest in the Western world. The result of a decade-long study of rights thinking in both China and the Western world, this book offers a comprehensive examination of the theories and practice of rights in the context of Chinese culture and social development. From the perspective of civil philosophy, the author discusses the problems of culture, morality, society and politics in modern China. The book also provides a unique contribution to an assessment of the impact of Western philosophical thought on contemporary Chinese rights and political thinking. This unique volume deals with both history and today, China and the West, in the field of rights thinking and practice.

It is becoming increasingly common for human rights norms to be transferred between legal and political systems and this book is a fresh approach to the intersection of transnational law and the protection of cultural difference beyond the single state border. It investigates how the construction and evolution of human rights norms are transferred in transnational legal settings and asks whether law should reflect, express or control any given aspect of culture. The chapters explore the ways that law and cultural identity may or may not co-exist, particularly in circumstances where a prima facie clash is observed. Examining legal approaches to cultural differences from a comparative perspective and across a wide range of locations, the book covers topics such as juvenile punishment, religious defamation, religious rights and conflict between industry and indigenous communities. It will be of value to those working in the areas of transnational and comparative law, as well as those concerned with human rights and the intersection of law and cultural difference.

This innovative book examines the effectiveness of international human rights law, through the case study of domestic violence. Domestic violence is an issue that affects vast numbers of women throughout all nations of the world, but as it takes place between private individuals it does not come within the ambit of the traditional interpretation of human rights law. Ronagh J.A. McQuigg questions whether international human rights law can only be effective in a 'traditional' case of human rights abuse or whether it can rise to the challenge of being used in relation to issues such as domestic violence. The book focuses primarily on the question of how international human rights law could be used in relation to domestic violence in the United Kingdom. McQuigg considers recent case law from the European Court of Human Rights on domestic violence and whether the UK courts could use the Human Rights Act 1998 to assist victims of domestic violence. The book goes on to look in detail at the statements of the international human rights bodies on domestic violence, with particular focus on those made by the United Nations Committee on the Elimination of Discrimination against Women and the Special Rapporteur on Violence against Women. The book explores the impact that the statements have had so far on the UK government's policy in relation to domestic violence and discusses how the statements made by the international human rights bodies could be used more effectively by non-governmental organisations, such as human rights groups and women's groups.

This interdisciplinary collection presents valuable discourse and reflection on the nature of a good death. Bringing together a leading judge and other legal scholars, philosophers, social scientists, practitioners and parents who present varying accounts of a good death, the chapters draw from personal experience as well as policy, practice and academic analysis. Covering themes such as patients' rights to determine their own good death, considering their best interests when communication becomes difficult and the role and responsibilities of health professionals, the book outlines how ethical healthcare might be achieved when dealing with assisted suicide by organizations and how end of life services in general might be improved. It will be of interest to students and academics working the area of medical law and ethics as well as health professionals and policy-makers.

One of the most comprehensive examinations of US torture policy, from the Cold War to the War on Terror to the debate over accountability Waterboarding. Sleep deprivation. Sensory manipulation. Stress positions. Over the last several years, these and other methods of torture have become garden variety words for practically anyone who reads about current events in a newspaper or blog. We know exactly what they are, how to administer them, and, disturbingly, that they were secretly authorized by the Bush Administration in its efforts to extract information from people detained in its war on terror. What we lack, however, is a larger lens through which to view America's policy of torture-one that dissects America's long relationship with interrogation and torture, which roots back to the 1950s and has been applied, mostly in secret, to "enemies," ever since. How did America come to embrace this practice so fully, and how was it justified from a moral, legal, and psychological perspective? The United States and Torture opens with a compelling preface by Sister Dianna Ortiz, who describes the unimaginable treatment she endured in Guatemala in 1987 at the hands of the the Guatemalan government, which was supported by the United States. Then a psychologist, a historian, a political scientist, a philosopher, a sociologist, two journalists, and eight lawyers offer one of the most comprehensive examinations of torture to date, beginning with the CIA during the Cold War era and ending with today's debate over accountability for torture. Ultimately, this gripping, interdisciplinary work details the complicity of the United States government in the torture and cruel treatment of prisoners both at home and abroad and discusses what can be done to hold those who set the torture policy accountable. Contributors: Marjorie Cohn, Richard Falk, Marc D. Falkoff, Terry Lynn Karl, John W. Lango, Jane Mayer, Alfred W. McCoy, Jeanne Mirer, Sister Dianna Ortiz, Jordan J. Paust, Bill Quigley, Michael Ratner, Thomas Ehrlich Reifer, Philippe Sands, Stephen Soldz, and Lance Tapley.

Using her experience of living under apartheid and witnessing its downfall and the subsequent creation of new governments in South Africa, the author examines and compares gender inequality in societies undergoing political and economic transformation. By applying this process of legal transformation as a paradigm, the author applies this model to Afghanistan. These two societies serve as counterpoints through which the book engages, in a nuanced and novel way, with the many broader issues that flow from the attempts in newly democratic societies to give effect to the promise of gender equality. Developing the idea of 'conditional interdependence', the book suggests a new approach based on the communitarian values which underpin newly democratic societies and would allow women's rights to gain momentum and reap greater benefits. Broad in its thematic approach, the book generates challenging and complex questions about the achievement of gender equality. It will be of interest to academics interested in gender and human rights, international and comparative law.

Popular music has long understood that human rights, if attainable at all, involve a struggle without end. The right to imagine an individual will, the right to some form of self-determination and the right to self-legislation have long been at the forefront of popular music's approach to human rights. At a time of such uncertainty and confusion, with human rights currently being violated all over the world, a new and sustained examination of cultural responses to such issues is warranted. In this respect music, which is always produced in a social context, is an extremely useful medium; in its immediacy music has a potency of expression whose reach is long and wide. Contributors to this significant volume cover artists and topics such as Billy Bragg, punk, Fun-da-Mental, Willie King and the Liberators, Hedwig and the Angry Inch, the Anti-Death Penalty movement, benefit concerts, benefit albums, Gil Scott-Heron, Bruce Springsteen, Wounded Knee and Native American political resistance, Tori Amos, Joni Mitchell, as well as human rights in relation to feminism. A second volume covers World Music.

Refugees living with disabilities are often forgotten or invisible during acute crises of human displacement. This groundbreaking work examines the experiences of persons with disabilities who have crossed borders in search of protection from disasters or conflict, and analyses the existing legal frameworks for their protection. The authors deftly explore the intersection between one of the oldest international human rights treaties, the 1951 Refugee Convention, with one of the newest, the Convention on the Rights of Persons with Disabilities (CRPD). Drawing on pioneering fieldwork in six countries - Malaysia, Indonesia, Pakistan, Uganda, Jordan and Turkey - this book examines how the CRPD is, or should be, changing the way that governments and aid agencies engage with and accommodate refugees with disabilities. Its timeliness is underscored by the adoption in 2016 of the UN Charter on Inclusion of Persons with Disabilities in Humanitarian Action at the World Humanitarian Summit. Engaging and thought-provoking, this book will captivate any scholar studying international law, development, disability rights and refugee and forced migration studies. It is also an imperative resource for practitioners and policymakers in the humanitarian and development sector, as well as international human rights organisations.

In many criminal justice systems a new trend towards incapacitation can be witnessed. A ubiquitous want for control seems to have emerged as a consequence of perceived safety risks. This can be seen not only in the mass incarceration of offenders but also in the disqualification of offenders from jobs, in chemical castration in cases of sexual crimes, the increased use of electronic monitoring and in the life-long monitoring of individuals who pose certain risks. Trends towards incapacitation are now even spreading to public administration and the employment sector, in the refusal of licenses and the rejection of employees with past criminal records. This book discusses the topic of incapacitation from various angles and perspectives. It explores how theories of punishment are affected by the more recent emphasis on incapacitation and how criminal justice practice is changing as a consequence of this new emphasis. Many contributors express criticisms with this trend towards incapacitation. They argue for a better calibration of measures to the severity of the misconduct. In addressing an increasingly important development in criminal justice, the book will be an essential resource for students, researchers, and policy-makers working in the areas of criminal law, sentencing, probation and crime prevention.

Following on from her previous nine books on discrimination law, Anne-Marie Mooney Cotter now focuses on the goal of child equality. Examining issues of child labour and the relevant laws which are designed to protect the most vulnerable in our society, the book explores the primary role of legislation and the judicial system and its impact on the fight for child rights and the ultimate goal of the end of inequality. The book considers the major common law countries of Australia and New Zealand, Africa and South Africa, Canada, Mexico and the United States, and the United Kingdom and Ireland, as well as the North American Free Trade Agreement and the European Union Treaty in a historical and compelling analysis of discrimination worldwide. By providing a detailed examination of child rights and the law, it will be an important read for those concerned with equality and empowering those most vulnerable to discrimination, the children.

The book concerns the study and analysis of the UN Committee on Economic, Social and Cultural Rights from an international legal perspective, taking into consideration the adoption of the 2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The volume provides a detailed account of the structure and functioning of the Committee on Economic, Social and Cultural Rights in the light of its jurisprudence, through a study of the Committee s procedures and practices (periodic reports and general comments), including taking into account the Optional Protocol for individual complaint procedure. The book considers the possible implications of the work of this Committee on other UN Committees, such as the Human Rights Committee and the UN Committee on the Rights of the Child, as well as considering the repercussions of its work on the international protection of fundamental rights, such as the right to education, to health and adequate food.

The UN Committee on Economic, Social and Cultural Rights will be of particular interest to academics and students of International and Human Rights law.

Cosmopolitan Justice and its Discontents pursues a reflection upon the institutional orders designed to ensure respect for the rule of law, human rights, and social justice. The majority of literature on cosmopolitanism tends to be oriented in sociology, political science or philosophy, and is largely positive. This book aims to fill the lacuna with respect to critical and legal perspectives in this field. In particular, it highlights the importance of international economic law and its institutions when evaluating the evolution of cosmopolitan norms. In addition, it provides critical and multidisciplinary perspectives on Cosmopolitan Justice and Sovereignty; Institutions, Civil Society and Accountability; and Social Exclusion, Migration, and Global Markets. This book will be of considerable interest to academics and students concerned with international public and private law, international criminal law, international economic law, human rights, migration, criminology, political science, and philosophy.

Homosexuality and the European Court of Human Rights is the first book-length study of the Court's jurisprudence in respect of sexual orientation. It offers a socio-legal analysis of the substantial number of decisions and judgments of the Strasbourg organs on the wide range of complaints brought by gay men and lesbians under the European Convention on Human Rights. Providing a systematic analysis of Strasbourg case law since 1955 and examining decades of decisions that have hitherto remained obscure, the book considers the evolution of the Court's interpretation of the Convention and how this has fashioned lesbian and gay rights in Europe. Going beyond doctrinal analysis by employing a nuanced sociological consideration of Strasbourg jurisprudence, Paul Johnson shows how the Court is a site at which homosexuality is both socially constructed and regulated. He argues that although the Convention is conceived as a 'living instrument' to be interpreted 'in the light of present-day conditions' the Court's judgments have frequently forged and advanced new social conditions in respect of homosexuality. Johnson argues that the Court's jurisprudence has an extra-legal importance because it provides an authoritative and powerful discursive resource that can be mobilized by lesbians and gay men to challenge homophobic and heteronormative social relations in contemporary societies. As such, the book considers how the Court's interpretation of the Convention might be evolved in the future to better protect lesbian and gay rights and lives.

Latin America has a long tradition of constitutional reform. Since the democratic transitions of the 1980s, most countries have amended their constitutions at least once, and some have even undergone constitutional reform several times. The global phenomenon of a new constitutionalism, with enhanced rights provisions, finds expression in the region, but the new constitutions, such as those of Bolivia, Colombia, Ecuador and Venezuela, also have some peculiar characteristics which are discussed in this important book. Authors from a number of different disciplines offer a general overview of constitutional reforms in Latin America since 1990. They explore the historical, philosophical and doctrinal differences between traditional and new constitutionalism in Latin America and examine sources of inspiration. The book also covers sociopolitical settings, which factors and actors are relevant for the reform process, and analyzes the constitutional practices after reform, including the question of whether the recent constitutional reforms created new post-liberal democracies with an enhanced human and social rights record, or whether they primarily serve the ambitions of new political leaders.

Written by an established scholar in the field, this text examines the nature of emergency powers and their use in the Russian constitution. It explores the use of such powers in Russian history, comparing the Russian situation with those that exist in other countries and discussing the legal thought underpinning such powers. The practicalities and theories of emergency orders are traced throughout history with Dormin arguing that the longer an emergency regime lasts, the less effective the measure becomes. With original research and remarkable insight, this text will be of interest to scholars examining the new Russia, its rulers, conflicts and motives, as well as its political systems.

Strategic Visions for Human Rights takes a multi-disciplinary approach to future directions for human rights. It looks beyond what international human rights treaties have so far established and considers the context in which rights in the twenty-first century might develop to meet needs. The book examines how international law might be utilized to protect groups rather than just individual members of the group and it also calls into question the liberal positivist approach to international law that provides the framework for human rights norms. The book is written and published in honour of Professor Kevin Boyle. It celebrates his long career in human rights law both as an academic and a practising barrister. Professor Boyle has taken numerous cases on human rights issues to the European Court of Human Rights in Strasbourg and has long been involved in human rights aspects of the peace process in Northern Ireland. He has published widely on human rights issues, focusing on freedom of expression and religion and non-discrimination. The contributors to this volume are well-known academics in the field of human rights and include Francesca Klug, Conor Gearty, David Beetham and Asbjorn Eide. Amongst some of the issues addressed in the book are the future of the European Court of Human Rights, the role of academics play in engendering transition to post-conflict democratic states, and human rights and religious pluralism.

The Delivery of Human Rights reflects on two overlapping issues in international human rights law: how can existing norms be better implemented and effected, and how can other branches of international law or other international actors be used so as to provide an improved delivery of those norms. Rather than simply looking at the content of the rights, this book will also explore how the framers' intention that individuals benefit from the norms can be achieved. The book is written and published in honour of Professor Sir Nigel Rodley KBE. It celebrates his career as an academic and practitioner in the area of human rights. Professor Rodley acted as the UN Special Rapporteur on Torture from 1993 to 2001 and is currently a member of the UN Human Rights Committee. He is also a member of the International Commission of Jurists. Since 2001 he has been a Member of the UN Human Rights Committee, established under the International Covenant on Civil and Political Rights. In 1998 he was knighted in the Queen's New Year's Honours list for services to Human Rights and International Law and in 2000 he received an honorary LLD from Dalhousie University. He is Professor and Chair of the Human Rights Centre, University of Essex, having taught there since 1990. The contributors to this volume are notable experts in the area of human rights law and include Paul Hunt, Malcolm Evans, Michael O'Flaherty and David Weissbrodt. The book addresses such topics as the Role of Special Rapporteurs, how can the absolute prohibition of torture be properly implemented, Responsibility to Protect, non-state actors, including businesses, and human rights.

This volume is a comprehensive and authoritative comparative analysis which asks whether Muslim States can comply with international human rights law whilst adhering to Islamic law. The traditional arguments on this subject are examined and responded to from both international human rights and Islamic legal perspectives. Through this analysis, it offers a clear vision of the realisation of international human rights within the application of Islamic law.

This book proposes a significant reassessment of the history of Iraq, documenting democratic experiences from ancient Mesopotamia through to the US occupation. Such an analysis takes to task claims that the 'West' has a uniquely democratic history and a responsibility to spread democracy across the world. It also reveals that Iraq has a democratic history all of its own, from ancient Middle Eastern assemblies and classical Islamic theology and philosophy, through to the myriad political parties, newspapers and protest movements of more recent times. This book argues that the democratic history of Iraq could serve as a powerful political and discursive tool where the Iraqi people may come to feel a sense of ownership over democracy and take pride in endorsing it. This could go a long way towards mitigating the current conflicts across the nation and in stabilizing and legitimating its troubled democracy. Taking an interdisciplinary approach and referring to some of the most influential critical theorists to question ideological assumptions about democracy and its history, this book is useful to those interested in political and legal history, human rights and democracy.

Kosovo s declaration of independence on 17 February 2008 has had a profound and polarising impact on international relations. While over a third of the world s countries have recognised Kosovo, others have been concerned that it sets a precedent for secessionist minorities. Indeed, Kosovo appears to have been used as a precedent in the Russia-Georgia conflict over South Ossetia. The book brings together contributions from leading academics on the legal aspects of Kosovo and, in particular, the International Court of Justice s Advisory Opinion of 2010. The result is an extensive examination from a variety of experts on Kosovo and its impact on international law.

Understanding the Islamic Veiling Controversy provides a sophisticated analysis of relevant legislation and case law in order to examine the assumptions and limits of the debates surrounding the issue of Islamic veiling. For some, Islamic veiling indicates a lack of autonomy, the oppression of women and the threat of Islamic radicalism to Western secular values; for others, it suggests a positive autonomous choice and a legitimate exercise of one's freedom of religion -- a much treasured right in democratic societies. Across seemingly diverse legal and political traditions, however, a set of discursive frameworks -- the preoccupation with autonomy and choice; the imperative of gender equality; and a particular secular understanding of religion and religious subjectivity -- shape the positions of both proponents and opponents of various restrictions on Islamic veiling. Rather than take a position on one or the other side of the debate, this book explores and challenges these frameworks. And, in so doing, it brings a consistent and sophisticated theoretical outlook to a comprehensive consideration of Islamic veiling controversies, as they have arisen around the world.

Based on original research and personal encounters, this book narrates the real-life-stories of women locked up in Indian prisons for alleged or actual violations of the state s criminal laws, contextualizing women offenders experiences of the criminal justice system and of state custodial institutions.

within the larger narratives of their particular lives, thus interrogating the social as well as legal frameworks within which women face adversities in their lives and in custody. It argues that the sex and gender issues that affect women outside are carried over inside, with extremely damaging consequences for the lives and mental health of women prisoners. The volume will be of interest to those in gender studies, legal studies, sociology, and human rights organisations, as well as to policy makers and the general reader.