bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Duty of Third States to Implement and Enforce International Humanitarian Law
Authors: Azzam  
Published: November 2003

AbstractThe debate surrounding peacekeeping missions and humanitarian intervention has become particularly poignant with the conflagration of violent conflict and incidents of genocide, presenting States with a moral and legal dilemma. While not addressing the issue of humanitarian intervention, this study argues that the international legal order imposes upon States not only a right but a duty to see to it that other States party to conflict abide by their legal and humanitarian obligations as members of the international community. The duty, argues the study, is imposed by several factors. Article~1 common to the Geneva Conventions and additional Protocol I imposes upon signatories the duty to ``respect and ensure respect for the Convention[s] ...'' The universal acceptance of the Conventions as well as the customary law nature and objective character of several of the Conventions' provisions and general principles of international law further make for an erga omnes responsibility, not only a contractual one between States, thus not subject to the principle of reciprocity. The paper shows that this obligation to act to ensure compliance with humanitarian law further arises from the United Nations Charter as well. The study goes on to discuss the scope of the duty to act, arguing that the Draft Articles on State Responsibility and a number of decisions by the International Court of Justice have gone beyond defining a State's right to act and beyond the duty not to assist the commission of violations, the omission of which constitute wrongful acts by States. It is further shown that the aforementioned is an obligation of result; States must continue to take measures to bring parties to a conflict to compliance with international humanitarian commitments until the desired result is achieved. Finally, the study concludes that the lack of enforcement of humanitarian law is a result of States' unwillingness to subject themselves to judicial machinery, which ``while cognizant of the hornets' nests of political entanglements, have the potential to struggle free of them.''
Discourses of Sex: Classical, Modernist, Post-Modernist
Authors: Heinze  
Published: November 2003

AbstractDiscourses of sexuality, gender and sexual orientation are moving from the margins to the mainstream of legal theory, notably in the area of international human rights. Each of these three sets of discourses preserves its own history and ideals. Neither are they wholly distinct from each other, nor are they simply three concepts denoting the same thing. Each has remained quasi-autonomous – always related to, yet always stubbornly distinct from, the others. No one of these three discursive sites can be engaged without significant reference to the other two; nor does one site simply reduce to another. What do we mean, then, when we use one of these terms, and when we choose it instead of the other two? What relationships obtain among the three sites? This essay proposes not an exhaustive analysis of those relationships, but only an approach that might be followed were such a broader analysis to be undertaken. It is argued that these three sites correlate to three intellectual moments – classical, modernist and post-modernist – in the constitution of the human subject within international human rights law. As an initial matter, this correlation can be understood to be straightforward: discourses of sexuality correlated to classicism, discourses of gender correlated to modernism, discourses of sexual orientation correlated to post-modernism. Closer analysis, however, reveals a more complex set of relationships, in which each of the three sites corresponds to each of the three intellectual moments. None of the three sites is `pure'. Each retains an ongoing dialogue with the others and within itself.
Realizing Women's Sexual Rights: Challenges in South Asia
Authors: Tambiah  
Published: November 2003

AbstractSexual rights are a new category of human rights still in the process of being clearly articulated subsequent to the debates at the International Conference on Population and Development (Cairo, 1994) and the Fourth World Conference on Women (Beijing, 1995). In South Asia this process is fraught with obstacles, among which are taboos concerning the meaningful public discussion of sexuality, and negative attitudes towards women's sexual autonomy. It is also affected by the negotiations of, and contests for, political power among the different ethno-religious communities in a South Asian state, which in turn can constrain progressive law-makers from developing and implementing legislation favorable to the realization of women's sexual rights. Using the 1995 parliamentary debates on reforms to the Sri Lankan Penal Code, this paper explores the challenges to realizing women's sexual autonomy in a multi-ethnic South Asian society. It highlights how the fear of female sexuality can be manipulated by state-level actors, serving certain political exigencies, to justify the denial of sexual autonomy and even to validate sexual violence against women. It also reflects on the implications for the movement for women's rights in South Asia, premised increasingly on the universality of human rights norms, when its advocates collide with ethno-nationalist proponents of `group rights' which are rooted in a cultural specificity whose markers are frequently assumed to be embodied by the female members of the group.
Nuremberg 50 Years Later: The Restitution of Jewish Property and Norwegian Justice
Authors: Cotler  
Published: November 2003

AbstractNorway, under the Nazi rule of Vidkun Quisling, was one of the first of the Occupied Countries to enact a Nuremberg-type Race Law, delegitimizing and disenfranchising Norwegian Jewry. From 24 till 26 November 1942, the arrest and deportation of Norwegian Jewry to Nazi death camps took place, followed by the systematic plundering of their property by Norwegian authorities. The latter was based on an Act of 26 October 1942, ordering all property of any kind belonging to a Jew to be confiscated and taken over by the Norwegian State treasury. After the War, a Reparations Board was established, but failed to properly indemnify most of the Norwegian Jewry claimants for the plundering of their property. This paper sets out what the legal basis is for ``restitution'' for these Nuremberg crimes committed by Norwegian authorities under the Nazi rule of Vidkun Quisling. The author identifies seven principles on which state responsibility for war crimes and the ensuing restitution are based. The author concludes that the obligation of restitution is not only the redress of a historical wrong, but one clearly anchored in international human rights law – and the inherent dignity and worth of every human life.
Security Interests in International Bankruptcies in Sweden
Authors: Bogdan  
Published: November 2003

AbstractThe purpose of this paper is to briefly describe Swedish conflict rules concerning the treatment in bankruptcy situations of security rights in rem (such as reservations of title, transfers of title for security purposes and mortgages) in respect of chattels and other assets. One problem encountered in this connection is the difficulty to distinguish between issues of insolvency law, governed by lex concursus, and issues of general private law, mostly governed by lex rei sitae. Other types of problems arise if the asset has after the creation of a security interest been moved from one country to another. Finally, the article deals with set-off in bankruptcy, since the creditor who is entitled to set off his claim is in a situation similar to that of a secured creditor.
The Work of the International Law Commission at Its Fiftieth Session (1998)
Authors: Simma  
Published: November 2003

AbstractThe article provides an overview of the work of the International Law Commission at its Fiftieth Session (1998). The topics covered are International Liability for Injurious Consequences Arising from Acts Not Prohibited by International Law, State Responsibility, Reservations to Treaties, Nationality in Relation to the Succession of States, Diplomatic Protection and, finally, Unilateral Acts of States.
Colonialism, Constitutionalism, Costs and Compensation: A Contemporary Comparison of the Legal Rights and Obligations of and towards the Scandinavian Sami and Indigenous Australians
Authors: Hocking  
Published: November 2003

AbstractAn earlier article addressed recent developments in Australia concerning indigen-ous land rights and outlined political and legal aspects of the debate surrounding that. This is a more specifically comparative study that seeks to compare the legal aspects of the land rights of Australian indigenous people with the legal aspects of the land rights of the Sami people in Scandinavia. The paper recognises from the outset that these two parts of the world possess different legal histories, but argues that in the modern international context, comparisons can be drawn with respect to indigenous human rights. Further, the paper contends that in both these societies, there have been advances and retreats and that only full governmental commitment to the principles of international law will ensure that the human rights of the respective indigenous people advance.In looking at comparative indigenous rights, or the failure to achieve rights, the focus is on property, including consideration of inclusion/exclusion of native people as citizens, the effects of colonization and relative access to goods and services, language recognition, rights of cultural development and protection of heritage, as well as practical implications in controlling other forms of development and fostering sustainable growth. We broaden the consideration of indigenous human rights to include matters of compensation and costs. Our overall contention is that it remains one of the principal challenges for both Australian and Scandinavian law to identify and translate co-existence and human rights for the indigenous people of those nations. In framing any such legal measures, governments will have to confront wider political issues of tolerance, sovereignty and citizenship. The dilemma for Australian Aboriginals is that the chance to remain Aboriginal may have to involve an appeal to the prin-ciples of international law whereas in Scandinavia the recognition of Sami reindeer herding has generally failed to foster broader rights to land and natural resources although there are some signs that this is emerging in Norway.
Minority Protection in International Law: From Standard-Setting to Implementation
Authors: Pentassuglia  
Published: November 2003

AbstractIn recent years, minority issues regularly feature on the international agenda, due to growing concerns for human rights and stability. Minority rights instruments are being multiplied accordingly. While this is no doubt a welcome development, the fact that the effectiveness of any (present and future) minority regime remains to be tested through an adequate implementation machinery should not be overlooked. The aim of this paper is to examine the international monitoring mechanisms which are relevant to minority protection, with a view to discussing the prospects for improving State compliance. An overview of such mechanisms and a focus on some basic, contemporary elements of the resulting monitoring process, afford the basis for a set of forward-looking reflections on the problem of the implementation of minority rights standards. An attempt has been made at analysing the relevant patterns of scrutiny within a broad perspective, namely in relation to their real and/or potential impact on minority protection as embraced by international law.
The Legitimacy of Minorities' Claim for Autonomy through the Right to Self-Determination
Authors: Welhengama  
Published: November 2003

AbstractThe grant of autonomous powers to minorities is considered as a threat to the stability of the nation-State system. Nonetheless, many academics and jurists now believe that autonomy can be used to reduce ethnic conflicts, provided that parties to such arrangements are willing to implement them in good faith. In contemporary debate amongst academics it is frequently argued that there is an apparent link between minorities' rights and autonomy. Moreover, some minority rights campaigners stress that minorities' right to autonomy emanates from the right to self-determination. Such claims are, however, contested by most nation-States on the ground that autonomy is not a right in international law. It is only a small number of States that are prepared to experiment with autonomous arrangements to address minorities' concerns within their constitutional structure. Whilst investigating the current developments in United Nations and State practice with regard to autonomy, this article critically analyses whether autonomy gains its legitimacy through the right to self-determination and the extent to which autonomy is being evolved as an integral part of the internal right to self-determination.
Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and the Rights of Religious Minorities
Authors: Rehman  
Published: November 2003

AbstractThis article examines the controversial and divisive issues of freedom of religion and the rights of religious minorities. A major stumbling-block in attaining a consensus on the subject has been the attitude of certain states which purport to follow the Sharia. The article however contends that in reality it is possible for Islamic states to find a great measure of compatibility with practices advocated by Western states on issues concerning the rights of religious minorities and religious freedom. Through an investigation of state practices, the paper concludes that the causes of the existing inconsistencies are embedded not in the Islamic system of governance (which these states are claiming to follow) but in domestic politics and constitutional inadequacies.
Preserving Linguistic Heritage; a Study of Scots Gaelic
Authors: Smith  
Published: November 2003

AbstractScots Gaelic, one of Europe's oldest indigenous languages, requires urgent action to arrest then reverse the decline in the numbers of its native speakers. Language is an integral part of the cultural identity of a group and the continuation of a traditional language is a prerequisite of the continuation of the cultural heritage of its speakers. However, linguistic rights are not afforded a high priority by the international community. This article will examine the position of Scots Gaelic in the context of the salient provisions of European Law. A brief historical account of Scots Gaelic will be provided prior to a more detailed analysis of the prevailing legal standards. The approach of the Scottish and UK Parliaments to the various legal instruments and to the language will then be assessed. It is evident that Scots Gaelic has little legal protection under national laws and it will be argued that the issue of the legal status of the Gaelic language must be addressed sooner rather than later in order to preserve the language and its associated culture. This inevitably means the Government taking action in excess of the minimum measures necessary to comply with the current international standards.
Assimilation through Ethnicity: China's Ethnic Language Policy in Yunnan and Shenyang
Authors: Shih  
Published: November 2003

AbstractThe following discussion tackles the complicated relationships between Mandarin and ethnic languages in China. It first introduces Chinese perspectives on the subject and takes note of the complexity of the issue while also showing that in China no universal language policy is possible. The paper then examines a few memoirs concerning the Mandarin programs in Yunnan to suggest how the promotion of ethnic language can assist in learning Mandarin. Finally, the paper gives reports from field interviews with teachers and cadres in a Korean school in Shenyang. This last case is particularly interesting as it demonstrates that the ethnic identity strengthened by an ethnic language program sponsored by the state makes the state, together with its Mandarin system, a concomitant and no longer threatening identity for ethnic Koreans. The ethnic language policy in China after the Cultural Revolution should be considered a success, not because it reproduces this or that identity or because it consolidates often considered oppressive Chinese nationalistic identity, but because it allows the coexistence and hybridisation of local ethnic identities.
The Peace Process in Guatemala and the Role of Third Parties
Authors: Rosenthal  
Published: November 2003

AbstractThe purpose of the Symposium is to share experiences on preventing violent conflicts, especially with regard to the situation of ethnic minorities. In this respect, this contribution might be slightly off-base: Guatemala's experience is not about preventing violent conflicts, but of ending a conflict of 40-years duration. Still, there is an underlying concern common to all, and that is to promote peace, plural democracy, respect for human rights and development.
Pyla: A Mixed Borderline Village under UN Supervision in Cyprus
Authors:   Papadakis
Published: November 2003

AbstractThis paper considers ethnic conflict within Cyprus involving Greeks, Turks and the United Nations. The focus for discussion is the village of Pyla on the 'Green Line' and the key question to be answered is: to whom does the border belong? The answer is that everyone in the village including the UN is involved in maintaining the boundary and thereby preventing ethnic violence breaking out. Procedures of everyday peace-making are carefully observed which prevent outsiders from stirring up trouble. However, this mutual responsibility is fraught with continuing tension between the three parties (Greek, Turkish and UN) created by the wider context of ethnic conflict at national and international levels. The best which the local people can hope for in current political conditions is the continuation of an uneasy balance between the three parties and a precarious containment of the endemic ethnic tension.
The Right to March Parading a loyal Protestant Identity in Northern Ireland
Authors:   Bryan
Published: November 2003

AbstractRiots taking place in the Northern Irish town of Portadown are analysed in the context of the 'right to march'. The paper concentrates specifically on the demands by a number of Protestant organisations that they should be allowed to parade along roads which they have followed for many years despite the objections of a large majority of the Roman Catholic, Nationalist community living along parts of the route. To understand fully these disputes it is necessary to examine the political and social situation that pertains to a particular time and place. The paper will also draw on comparative material in order to explore the general nature of political rituals since they are also elements of what took place locally which are common to most societies. I particularly wish to reject any notion that ethnic groups in N. Ireland are in some way trapped by their history since, on the contrary, research into public rituals such as these parades reveals the ways in which they are used as a dynamic political resource through changing historical circumstances.
Religion, Blood and the Equality of Rights The Case of Ethiopian Jews in Israel
Authors:   Weil
Published: November 2003

AbstractThe legal status of Ethiopian Jews who were permitted to migrate to Israel is examined. I demonstrate that Ethiopian Jews formally equality of rights and responsibilities with other Jews in Israel in major spheres of life while in practice they are segregated giving rise to feelings of deprivation. On the one hand there is a policy of affirmative action whereby they receive preferential treatment in housing, education and other areas compared with other immigrants while, on the other hand, they are discriminated against - reasonably or unreasonably - in the fields of religion and health. They still encounter restrictions in selecting a Rabbi who will be willing to perform the marriage ceremony. A major demonstration in 1996 around the issue of AIDS documented here in detail shows how a discrepancy exists between the official status of Ethiopian Jews as equal and their perceived status of collective rights. Symbolically, blood has become the marker between an Ethiopian Jew and other Jews in Israel in a situation where Ethiopian immigrants are striving for equality as Jews.
Ethnic or Socio-Economic Conflict? Political Interpretations of the Rwandan Crisis
Authors:   Brandstetter
Published: November 2003

AbstractRather than trace the political history of the conflict in Rwanda I will focus on the different interpretations of the conflict by the actors involved. The external identification of the Tutsi refugees as 'Banyarwanda' corresponds with the ideology and self image of the RPF who were recruited among the refugees and their descendants who fled to Uganda during and after 1959. The RPF presents itself as a democratic organisation speaking for all Rwandans and its anti-ethnic stance is designed not only to appeal to Rwandans but also to a Western audience. The RPF's opponent, the Habyarimana government in Rwanda, presented itself as the heir of the 1959 'peasant revolution' which had replaced politics with 'development', and portrayed the RPF as feudal Tutsi revanchists coming to set the garden of Eden on fire. The government also joined Hutu extremists in presenting the Hutu-Tutsi conflict as 'natural', invoking the Hamitic-Bantu distinction.
'They Give us the Categories and We Fill Ourselves in' Ethnic Thinking in Singapore
Authors:   Ackermann
Published: November 2003

AbstractThis paper will demonstrate the prevalence of 'ethnic thinking' in everyday life and the role which culture plays in defining individuals and groups in Singapore. I will argue that the Singapore state has intentionally created a national identity which rests on the idea of the assumed purity of the different ethnic groups which exist within that nation. Singpore's multi-racial policies force the heterogeneous character of the population into four 'races' and there are no officially recognised inter-ethnic individuals within the state. The official promotion of 'ethnic' culture which claims that ethnic identity and culture are somehow identical results in a culture of stereotypes which shapes everyday life - where people live and how they interact as neighbours, for example. The stereotypes are reinforced by religious festivals. While state support of ethnic differentiation has helped to prevent ethnic violence, the politicisation of ethnic identity may ironically encourage conflict in the future when ethnic and economic divisions coincide.
Anthropological approaches to ethnicity and conflict in Europe and beyond
Authors: Allen  , Eade  
Published: November 2003

AbstractIt is widely assumed that the spread of civil wars since the late 1980s has been due to ethnic loyalties resurfacing after the cold war. The paper argues that this is a misleading and misinformed point of view. The academic discipline which has been most important in developing the concept of ethnicity is anthropology. Few anthropologists understand ethnicity as something that explains conflict in itself, and most perceive it as an aspect of social interaction rather than a set of cultural characteristics associated with a particular group. Anthropologists reject the idea that ethnicity is given in nature, although they recognise that its power is linked to the fact that is can appear to be so. Various models and theories of ethnicity are discussed under the headings of essentialist, instrumentalist and relationalist approaches. The paper ends by discussing some of the specific issues raised by anthropological studies among populations in Europe and North America, and draws attention to the dangers of conflating ethnicity with biological conceptions of race.