Freedom of Expression and Hate Speech

This is a study of free speech and hate speech with reference to the international standards and to the United States jurisprudence. The study, in a comparative and critical fashion, depicts the historical evolution and the application of the concept of ‘free speech,’ within the context of ‘hate speech.’ The main question of this article is how free speech can be discerned from hate speech, and whether the latter should be restricted. To this end, it examines the regulation of free speech under the First Amendment to the United States Constitution, and in light of the international standards, particularly under the International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Rights, and the European Convention on Human Rights and Fundamental Freedoms. The study not only illustrates how elusive the endeavour of striking a balance between free speech and other vital interests could be, but also discusses whether and how hate speech should be eliminated within the ‘marketplace of ideas.’

How Effective is the United Nations Committee Against Torture?

This article examines the question of how states have responded to the comments of the United Nations Committee against Torture through an analysis of eight Western European states. It concludes that the Committee’s recommendations have had a substantial impact in four of the states surveyed, however only a limited effect in two other states and little or no impact in the two remaining states. These findings lead to concerns as regards the effectiveness of the Committee against Torture. The article focuses on the Concluding Observations made by the Committee on the reports submitted by the states in question.

WTO government procurement rules and the local dynamics of procurement policies: A malaysian case study

This article examines efforts to create binding international rules regulating public procurement and considers, in particular, the failure to reach a WTO agreement oil transparency in government procurement. The particular focus of the discussion is the approach taken by Malaysia to these international procurement rules and to the negotiation of an agreement on transparency. Rules governing public procurement directly implicate fundamental arrangements of authority amongst and between different parts of government, its citizens and non-citizens. At the same time, the rules touch upon areas that are particularly sensitive for some developing countries. Many governments use preferences in public procurement to accomplish important redistributive and developmental goals. Malaysia has long used significant preferences in public procurement to further sensitive developmental policies targeted at improving the economic strength of native Malays. Malaysia also has political and legal arrangements substantially at odds with fundamental elements of proposed global public procurement rules. Malaysia has, therefore, been forceful in resisting being bound by international public procurement rules, and has played all important role in defeating the proposed agreement oil transparency. We suggest that our case study has implications beyond procurement. The development of international public procurement rules appears to be guided by many of the same values that guide the broader effort to create a global administrative law. This case study, therefore, has implications for the broader exploration of these efforts to develop a global administrative law, in particular the relationship between such efforts and the interests of developing countries.

Human Dignity and judicial Interpretation of Human Rights

The Universal Declaration on Human Rights was pivotal in popularizing the use of 'dignity' or 'human dignity' in human rights discourse. This article argues that the use of 'dignity', beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common understanding of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context-specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to significant judicial manipulation. increasing rather than decreasing judicial discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of substantive interpretations of human rights guarantees which appear to be intentionally, not just coincidentally. highly contingent on local circumstances. Despite that, however, I argue that the concept of 'human dignity' plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication.

Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy

Despite the much vaunted triumph of human rights, amnesties continue to be a frequently used technique of post-conflict transitional justice. For many critics, they are synonymous with unaccountability and injustice. This article argues that despite the rhetoric, there is no universal duty to prosecute under international law and that issues of selectivity and proportionality present serious challenges to the retributive rationale for punishment in international justice. It contends that many of the assumptions concerning the deterrent effect in the field are also oversold and poorly theorized. It also suggests that appropriately designed restorative amnesties can be both lawful and effective as routes to truth recovery, reconciliation, and a range of other peacemaking goals. Rather than mere instruments of impunity, amnesties should instead be seen as important institutions in the governance of mercy, the reassertion of state sovereignty and, if properly constituted, the return of law to a previously lawless domain.

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.