Courts and Consociations:How human rights courts may destabilize power-sharing settlements

We consider the use of consociational arrangements to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts, and their compatibility with non-discrimination and equality norms. Key questions include to what extent, if any, consociations conflict with the dictates of global justice and the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements. In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and, most recently, in Sejdic and Finci, concerning the constitutional arrangements established for Bosnia Herzegovina under the Dayton Agreement. The Court’s recent decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in the Belgian cases. We seek to account for this change and assess its implications. We identify problematic aspects of the judgment and conclude that, although the Court’s decision indicates one possible trajectory of human rights courts’ reactions to consociations, this would be an unfortunate development because it leaves future negotiators in places riven by potential or manifest bloody ethnic conflicts with considerably less flexibility in reaching a settlement. That in turn may unintentionally contribute to sustaining such conflicts and make it more likely that advisors to negotiators will advise them to exclude regional and international courts from having standing in the management of political settlements.

ARTICLE: Property and the Definition of Slavery

Currently there is no clear understanding of the meaning of ‘slavery’ in modern international law. While generally it is accepted that the
authoritative definition of slavery is provided by Article 1 of the Slavery Convention 1926, in recent times slavery has been understood in such a wide variety of ways that effectively it is a meaningless term. This paper reflects on this interpretation problem and aims to redress this balance by reclaiming the core meaning of the legal definition. It applies property law perspectives to explain the conception of ownership invoked by Article 1, to argue that it remains relevant and to explore how it might be applied in identifying modern cases of slavery.

Human Rights in Northern Ireland in 2011

This chapter surveys and comments on the developments in the legal protection of human rights in Northern Ireland during the year 2011.

Legislation Blocking Antitrust Investigations and the September 2012 Russian Executive Order

This article offers a typology of so-called blocking legislation and analyses its development, functions and legality under international law. It also presents and discusses the new Russian blocking Order, issued in September 2012, focusing on its possible effects on the European Commission's investigation of Gazprom's business practices (in light of EU competition law) as well as, more broadly, on foreign operations of Russian strategic enterprises.

Differenzierte Gerechtigkeit: Diskriminierungsschutz und Vertragsrecht

The theme of this book is the perceived tensions between contract law's principle of private autonomy and non-discrimination law. I first analyse the notion of discrimination, and specify that I restrict the investigation to ascribed difference,more specifically to perceived race/ethnicty, sex/gender and disability. Based on an analysis of the aims of non-discrimination law which extends onto markets, I then presented potential structures of non-discrimination clauses addressing market inequalities. Turning to a doctrinal investigation of German contract law and its position towards discrimination on grounds, I first investigated whether international law, EU law or the German constitution form a stable base for contractual non-discrimination law. Having concluded that these bodies of law require some protection against discrimination based on ascribed difference, but that contract law needs to provide its own specification, I then offer a very short comparative chapter on British and Dutch non-discrimination law (I guess I have developed quite a bit in this field since then!). Finally, I analyse in how far German courts have offered protection against discrimination on markets in the past, and which position the doctrine has taken. From page 290, I finally offer a conceptual, paradigmatic and principled proposal of how to integrate a principle of non-discrimination into German contract law. To my own surprise, this was later endorsed by one of the "doyens" of German contract law, Professor Canaris. In any case, you can see from my edited collection of 2011, that I am still fascinated by discrimination on grounds of race/ethnicity, sex/gender and disability.

Human Rights in Northern Ireland 2009-10

This report surveys the legislative and judicial developments in human rights law within Northern Ireland in the years 2009 and 2010, highlighting the respects in which the law was or was not in compliance with international human rights standards, in particular those laid down in the European Convention on Human Rights.

Gaining ethical approvals to undertake sexual health research with young people in the UK: Applying a 'Children's Rights Based Approach'

This paper (co-written with Dr Maria Lohan, Dr Carmel Kelly & Professor Laura Lundy) will describe the ethical review process to undertake health research in the UK, and explain an approach that can help researchers deal with ethical and methodological dilemmas in their research. Ethical review is necessary to ensure researchers and participants are protected, yet the requirement to ‘pass’ numerous committees may be challenging particularly for health researchers who work with vulnerable groups and sensitive topics. The inclusion of these groups/topics is crucial if health researchers are to understand health disparities and implement appropriate interventions with health benefits for vulnerable populations. It is proposed that to overcome ethical and methodological challenges and pitfalls, researchers must implement strategies that advocate for, and increase the participation of, vulnerable populations in health research. A ‘children’s rights based approach’ using participatory methodology will be described that draws on the jurisprudence of international law, (United Nations Convention on the Rights of the Child, 1989) and provides a framework that may empower ethics committees to carry out their function confidently. The role of the researcher, framed within the context of doctoral level study, will be reviewed in terms of the investment required and benefits of utilising this approach. It will be argued that adopting this approach with vulnerable groups, not only guarantees their meaningful participation in the research process and permits their voices to be heard, but also offers ethics committees an internationally agreed upon legal framework, ratified by their governing States, from which to fulfil their obligations and resolve their ethical dilemmas. Increasing the representation and participation of vulnerable groups in health research can inform the development of health policy and practice based on ‘insider knowledge’ that better engages with and more adequately reflects their specific needs. This is likely to yield numerous health, social and economic benefits for all of society through the delivery of more equitable, effective and sustainable services.

Beyond Attribution: Responsibility of Armed Non-State Actors for Reparations in Northern Ireland, Colombia and Uganda

This chapter explores the responsibility of armed non-state actors for reparations to victims. Traditionally international law has focused on the responsibility of the state, and more recently the responsibility of convicted individuals before the International Criminal Court, to provide reparations for international crimes. Yet despite the prevalence of internal armed conflict over the past few decades, there responsibility of armed groups for reparations has been neglected in international law. Although there is a tentative emerging basis for armed groups to provide reparations under international law, such developments have not yet crystallized into hard law. However, when considering the more substantive practice of states in Northern Ireland, Colombia and Uganda, a greater effort can be discerned in ensuring that such organizations are responsible for reparations. This paper finds that not only can armed non-state actors be held collectively responsible for reparations, but due to the growing number of internal armed conflict they can play an important role in ensuring the effectiveness of reparations in remedying victims’ harm. Yet, finding armed groups responsible for reparations is no panacea for accountability, due to the nature of armed conflicts, responsibility may not be distinct, but overlapping and joint, and such groups may face difficulties in meeting their obligations, thus requiring a holistic approach and subsidiary role for the state.

Faith-based Non-Governmental Organizations in the Public Square

This chapter has both a methodological and a substantive aim. First, I suggest, using the role and function of NGOs in religiously related legal disputes as a paradigm example, the distinction between institutional, doctrinal, and theoretical approaches to the study of the relationship between religion and law is sometimes unhelpful, creating a barrier preventing us from understanding the phenomenon that we are examining. Instead, I suggest, a more integrated understanding, drawing on each of these approaches and seeing how they relate to each other, may well be more illuminating. The second aim of this chapter is to suggest, in a preliminary way, that the phenomenon of faith-based organizations should be more integrated than in the past into doctrinal and theoretical debates in the area of law and religion, in particular the problem of how liberal society is to engage with organized religion where there is a fundamental dispute as to who represents that religion, or as to what the basic tenets of that religion are.