Showing papers on "Fundamental rights published in 2004"

From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality

Abstract: Do Supreme Court decisions matter? In 1896 the United States Supreme Court ruled in Plessy v. Ferguson that railroad segregation laws were permissible under the Fourteenth Amendment. In 1954 the Court's decision in Brown v. the Board of Education held that the same constitutional provision invalidated statutes segregating public schools How great an impact did judicial rulings such as Plessy and Brown have? How much did such Court decisions influence the larger world of race relations? In From Jim Crow to Civil Rights, Michael J. Klarman examines the social and political impact of the Supreme Court's decisions involving race relations from Plessy, the Progressive Era, and the Interwar Period to World Wars I and II, Brown and the Civil Rights Movement. He explores the wide variety of consequences that Brown may have had--raising the salience of race issues, educating opinion, mobilizing supporters, energizing opponents of racial change. He concludes that Brown was ultimately more important for mobilizing southern white opposition to racial change than for encouraging direct-action protest. The decision created concrete occasions for violent confrontation--court ordered school desegregation and radicalized southern politics, leading to the election of politicians who calculated that violent suppression of civil rights demonstrations would win votes. It was such violence--vividly captured on television--that ultimately transformed northern opinion on race, leading to the enactment of landmark civil rights legislation in the mid 1960s. A fascinating investigation of the Supreme Court's rulings on race, From Jim Crow to Civil Rights, spells out in exhaustive detail the political and social context against which the Supreme Court Justices operate and the consequences of those decisions on the civil rights movement and beyond.

How to Influence States: Socialization and International Human Rights Law

Abstract: Regime design choices in international law turn on empirical claims about how states behave and under what conditions their behavior changes. We suggest that a central problem for human rights regimes is how best to socialize "bad actors" to incorporate globally legitimated models of state behavior and how to get "good actors" to do better. Substantial empirical evidence suggests three distinct mechanisms whereby states and institutions might influence the behavior of other states: coercion, persuasion, and acculturation. Several structural impediments preclude full institutionalization of coercion- and persuasion-based regimes in human rights law. Yet, inexplicably these models of social influence predominate in international legal studies. In this Article, we first describe in some detail the salient conceptual features of each mechanism of social influence. We then link each of the identified mechanisms to specific regime design characteristics - identifying several ways in which acculturation might occasion a rethinking of fundamental regime design problems in human rights law. Through a systematic evaluation of three design problems - conditional membership, precision of obligations, and enforcement methods - we elaborate an alternative way to conceive of regime design problems. We maintain that (1) acculturation is a conceptually distinct social process through which state behavior is influenced; and (2) the regime design recommendations issuing from this approach defy conventional wisdom in international human rights scholarship. This exercise not only recommends reexamination of policy debates in human rights law; it also provides a conceptual framework within which the costs and benefits of various design principles might be assessed. Our aim is to improve the understanding of how norms operate in international society with a view to improving the capacity of global and domestic institutions to harness the processes through which human rights cultures are built.

Putting the ‘rights‐based approach’ to development into perspective

Abstract: This paper seeks to unravel some of the tangled threads of contemporary rights talk. For some, the grounding of rights‐based approaches in human rights legislation makes them distinctively different to others, lending the promise of re‐politicising areas of development work—particularly, perhaps, efforts to enhance participation in development, that have become domesticated as they have been ‘mainstreamed’ by powerful institutions like the World Bank. Others complain that like other fashions, the label ‘rights‐based approach’ has become the latest designer item to be seen to be wearing, and has been used to dress up the same old development. We pose a series of questions about why rights have come to be of interest to international development actors, and explore the implications of different versions and emphases, looking at what their strengths and shortcomings may come to mean for the politics and practice of development.

Declaration on fundamental principles and rights at work

Abstract: A key measure of women's improvement in employment is the availability of good-quality jobs for women in legislative, senior official or managerial (LSOM) positions. Higher participation rates for women in LSOM jobs indicate a reduction of discriminatory barriers. Although women still represent a distinct minority in such positions throughout the world, holding only 28% of these senior jobs, there has been considerable progress. In the EU, women have increased their share of high-status positions over the past decade by 3.1% to current level of 30.6%.

Human Rights: Between Idealism and Realism

Abstract: Table of Treaties and Other Relevant Instruments 1. Introduction 2. History of Human Rights 3. The Different 'Generations' of Human Rights: From Human Rights to Good Governance 4. Universality of Human Rights 5. Implementation at National Level 6. The Work of the Political Bodies of International Organizations 7. The Work of Expert Bodies: Examination of State Reports 8. The Work of Expert Bodies: Complaint Procedures and Fact-finding 9. Supervision by International Tribunals 10. Enforcement by States and the Role of Non-Governmental Organizations 11. Mitigating the Effects of Armed Conflict: Humanitarian Law 12. Criminal Prosecution of Human Rights Violations 13. Civil Suits against Human Rights Violators 14. Time for Hope, or Time for Despair?

Globalizing Democracy and Human Rights

Abstract: Acknowledgements Introduction: between the personal and the global Part I. Theoretical Considerations: 1. Hard questions in democratic theory: when justice and democracy conflict 2. Two concepts of universality and the problem of cultural relativism Part II. Democracy and Rights, Personalized and Pluralized: 3. Embodied politics 4. Racism and democracy 5. Cultural identity, group rights, and social ontology 6. Conceptualizing women's human rights Part III. Globalizing Democracy in a Human Rights Framework: 7. Evaluating the claims for a global democracy 8. Are democracy and human rights compatible in the context of globalization? 9. The global democratic deficit and economic human rights Part IV. Current Applications: 10. Democratic management and the stakeholder idea 11. Democratic networks: technological and political 12. Terrorism, empathy, and democracy Index.

Human Rights and the End of Empire: Britain and the Genesis of the European Convention

Abstract: NOTE ON THE PAPERBACK EDITION PREFACE ABBREVIATIONS 1 Human Rights, Fundamental Freedoms, and the World of the Common Law 2 The Mechanisms of Repression 3 The International Protection of Individual Rights Before 1939 4 The Ideological Response to War: Codes of Human Rights 5 Human Rights and the Structure of the Brave New World 6 The Burdens of Empire 7 The Foreign Office Establishes a Policy 8 Beckett's Bill and the Loss of the Initiative 9 Conflict Abroad and at Home 10 The Growing Disillusion 11 Britain and the Western Option 12 From the Brussels Treaty to the Council of Europe 13 A Convention on the Right Lines: The Rival Texts 14 The Conclusion of Negotiations and the Rearguard Action 15 The First Protocol 16 Ratification and its Consequences 17 Emergencies and Derogations 18 The First Cyprus Case 19 The Outcome of the Two Applications 20 Coming In, Rather Reluctantly, From the Cold Bibliography Index

The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights

Abstract: During the last thirty years the European Court of Human Rights has been developing,at an expanding pace, positive obligations under the European Convention. This monograph seeks to provide a critical analysis of the burgeoning case law concerning positive obligations, a topic which is relatively uncharted in the existing literature. Positive obligations require many different forms of action by member states, ranging from effectively investigating killings through to protecting peaceful demonstrators from violent attacks by their opponents. The contemporary significance of these obligations is graphically illustrated by the fact that it is the obligation upon states to provide fair trials to determine civil and criminal proceedings within a reasonable time that is the source of the overwhelming majority of complaints to the European Court in recent years. The study examines the legal bases and content of key positive obligations. Conclusions are then drawn concerning the reasons for the development of these obligations and areas of potential expansion are identified.

Measuring Human Rights: Principle, Practice and Policy

Abstract: This paper demonstrates why human rights measurement is important, how human rights have been measured to date, and how such measures can be improved in the future. Through focusing primarily but not exclusively on the measurement of civil and political rights, the paper argues that human rights can be measured in principle, in practice, and as outcomes of government policy. Such measures include the coding of formal legal documents, events-based, standards-based, and survey-based data, as well as aggregate indicators that serve as indirect measures of rights protection. The paper concludes by stressing the need for continued provision of high quality information at the lowest level of aggregation, sharing information and developing an ethos of replication, and long term investment in data collection efforts.

Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization

Abstract: International organizations like Human Rights Watch are legitimately urged to pay more attention to economic, social and cultural rights. But practical prescriptions are often simplistic—typically involving only the rhetorical invocation of these rights. The strength of organizations like Human Rights Watch is not their rhetorical voice but their shaming methodology—their ability to investigate misconduct and expose it to public opprobrium. That methodology is most effective when there is relative clarity about violation, violator, and remedy. That clarity is best achieved when misconduct can be portrayed as arbitrary or discriminatory rather than a matter of purely distributive justice.

Soft law in governance and regulation : an interdisciplinary analysis.

Abstract: 1. Introduction Part I: The Legal Doctrine and Soft Law 2. Soft Law in the State Aid Policy Area 3. The Court and Soft Law: Who's Afraid of the EU Fundamental Rights Charter? 4. Soft Law and International Financial Institutions - Issues of Hard and Soft Law from a Lawyer's Perspective Part II: Governance Theories of Regulation 5. Between Deliberation and Discipline: Soft Governance in EU Employment Policy 6. OECD Governance through Soft Law 7. Emergent Cross-Sectional Soft Regulations: Dynamics at Play in the Global Compact Initiative Part III: Democracy and Soft Law 8. Soft Law and Three Notions of Democracy: The Case of the EU Part IV: Multi Organisations and Soft Data 9. Soft Regulation from an Organizational Perspective 10. Conclusions References Index

Post‐national citizenship, social exclusion and migrants rights: Mexican seasonal workers in Canada

Abstract: In the past few decades, migrants residing in many European and North American countries have benefited from nation‐states' extension of legal rights to non‐citizens. This development has prompted many scholars to reflect on the shift from a state‐based to a more individual‐based universal conception of rights and to suggest that national citizenship has been replaced by post‐national citizenship. However, in practice migrants are often deprived of some rights. The article suggests that the ability to claim rights denied to some groups of people depends on their knowledge of the legal framework, communications skills, and support from others. Some groups of migrants are deprived of the knowledge, skills, and support required to negotiate their rights effectively because of their social exclusion from local communities of citizens. The article draws attention to the contradiction in two citizenship principles—one linked to legal rights prescribed by international conventions and inscribed through internati...

Are Muslims Discriminated against in Canada since September 2001

Abstract: /RESUME Following the terrorist acts in the United States in September 2001, hostility toward Muslims increased in North America and Europe. This article describes the different forms of discrimination experienced by Muslims in Canada inasmuch as the data gathered during and before the last two years allow it. (1) It also attempts to describe the main factors underlying the hostility toward Muslims and how these factors could be peculiar to Canadian society, where the government proclaims itself the only multicultural state in the West and one that is very respectful of immigrants' and cultural minorities' rights. A la suite des attentats terroristes aux Etats-Unis en septembre 2001, les actes hostiles se sont multiplies a l'egard des personnes de confession musulmane dans les societes occidentales. Cet article retrace les diverses formes de discrimination subies par les musulmans au Canada autant que le permettent les donnees compilees avant et apres les evenements de septembre 2001. Il tente aussi de reperer les fondements de cette discrimination qui s'avereraient propres au Canada, un pays dont l'Etat se proclame le seul Etat multiculturel au monde et parmi les plus respectueux des droits des immigres et de leurs descendants. INTRODUCTION According to the Multiculturalism Act (1988), "The Government of Canada recognizes the diversity of Canadians as regards race, national or ethnic origin, colour and religion as a fundamental characteristic of Canadian society and is committed to a policy of multiculturalism." Discrimination against Muslims is, therefore, a subject of national interest, particularly since the September 11 terrorist attacks in the United States. Islam is a new phenomenon in Canada. It first became part of the public debates during the 1990s. In 1994, students wearing the hijab (a traditional headscarf) were expelled from some schools in Quebec. Since 1996, data have been published showing the growth of the Muslim population. According to 2001 census data, the Muslim population numbered 579,000 persons, growing from 253,000 in 1991. The majority are of Pakistani origin and live in the Toronto area, and Montreal is home to the second largest concentration of Muslims, with a population of 120,000 of mostly Arab origin. This article has three objectives: to describe the discrimination suffered by Muslims in Canada, to assess any increase in the level of discrimination since September 2001, and to determine the forms it takes and the reasons for this discrimination in Canada. The fulfillment of these objectives requires that definitions of discrimination, including those provided by the Canadian government, be specified. DISCRIMINATION AND THE RIGHT TO EQUALITY The Canadian Charter of Rights and Freedoms (1982), along with other provincial Charters of Rights and Freedoms, protect fundamental freedoms (of conscience, religion, thought, opinion, expression, peaceful assembly, association, and defense) and basic human rights (to life, security, privacy, dignity, non-harassment, and presumption of innocence). They prohibit discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental/physical disability. The right to equality protected by these documents is fourfold: equality before the law, equality in the application of the law, equality of protection afforded by the law, and equal benefit of the law. The concept of equal benefit of the law counters a formal conception of equality as identical treatment that can, paradoxically, cause serious inequality. It is a Canadian principle that, in order to treat all equally, distinctions may occasionally have to be made (Crepeau 1994). In an unprecedented 1989 judgment, (2) the Supreme Court defined discrimination as a "distinction, whether intentional or not, based on motives related to the personal characteristics of an individual or a group of individuals, which impose on this individual or group burdens, obligations or disadvantages not imposed on others, or prevent or restrict access to the possibilities, benefits and advantages offered to other members of society. …

The human right to water : legal and policy dimensions

Abstract: The evolution of the right to water can be traced to the developments of the early 1970s. This Study analyzes the resolutions and declarations of the various conferences and forums that have been held since that time, and the ways in which they have confronted the issue of the right to water. The Study then discusses the evolution of the international legal regime for the protection and promotion of human rights, and pays particular attention to the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, as well as to the International Covenant on Civil and Political Rights. The role of each of the committees established to oversee the implementation of the two Covenants is considered in some detail. Particular attention is given to the Committee on Economic, Social and Cultural Rights, its evolution, and its strengthening, and the practice of issuing General Comments. The last two parts of the Study are devoted to General Comment No. 15, which recognizes the human right to water. These parts analyze the extent to which the Comment recognizes a legal right to water, and highlights some policy aspects that are related to, and may affect, this right. The core thesis of this book is that there exists, within the legal framework of the International Covenant on Economic, Social and Cultural Rights, a human right to water because it is a right that inheres in several other rights, and a right without which key provisions of the Covenant would be rendered ineffectual. This conclusion is buttressed also by the interpretative authority that lies with the Committee having evolved from its initial form as a Working Group, to what is now undeniably, a fully-fledged entity, with significant formal authority and legitimacy. Although this conclusion acknowledges that General Comments do not create new rights, it recognizes that General Comment No. 15 extrapolates the normative and practical bases of a human right to water within the fabric of the International Covenant on Economic, Social and Cultural Rights. Together with a number of General Assembly resolutions on the issue, including the Millennium Development Goal related to water, as well as the voluminous body of soft law provisions, the General Comment arguably provides further evidence that there is an incipient right to water evolving in public international law today. Moreover, the Comment has offered a new momentum to efforts aimed at translating those soft law commitments into substantive, precise, and legally binding obligations.

Unintended Consequences of Land Rights Reform: The Case of the 1998 Uganda Land Act

Abstract: Empirical studies of land rights privatisation have tended to underemphasise the unintended impacts of land rights reform relative to establishing whether the predicted impacts have occurred. This article, in reviewing some of the unintended consequences of the 1998 Uganda Land Act, draws attention to ways in which intended impacts may be undercut by lack of both consultation and foresight in anticipating responses to new legal provisions and by lack of adequate resourcing of the reform process. It also recognises that unintended outcomes may sometimes reflect appropriate adaptations of legal provisions at the local level, and briefly considers what light the Ugandan experience can throw on recent proposals for Normalisation of informal property rights in the Third World.

Corporations and Transnational Human Rights Litigation

Abstract: Since the mid-1980s,beginning with the unsuccessful Union Carbide litigation in the USA, litigants have been exploring ways of holding multinational corporations [MNCs] liable for offshore human rights abuses in the courts of the companies' home States. The highest profile cases have been the human rights claims brought against MNCs (such as Unocal, Shell, Rio Tinto, Coca Cola, and Talisman) under the Alien Tort Claims Act in the United States. Such claims also raise issues under customary international law (which may be directly applicable in US federal law) and the Racketeer Influenced and Corrupt Organizations [RICO] statute. Another legal front is found in the USA, England and Australia, where courts have become more willing to exercise jurisdiction over transnational common law tort claims against home corporations. Futhermore, a corporation's human rights practices were indirectly targeted under trade practices law in groundbreaking litigation in California against sportsgoods manufacturer Nike. This new study examines these developments and the procedural arguments (eg regarding personal jurisdiction and especially forum non conveniens) which have been used to block litigation, as well as the principles which can be gleaned from cases which have settled. The analysis is important for human rights victims in order to know the boundaries of possible available legal redress. It is also important for MNCs, which must now take human rights into account in managing the legal risks (as well as moral and reputation risks) associated with offshore projects.

Same-Sex Sexualities and the Globalization of Human Rights Discourse

Abstract: In the past decade, a “double movement of globalization” has taken place in the realm of gay rights. On the one hand, a globalization of human rights has occurred, whereby human rights have become a key criterion by which the “progress” of nations is evaluated. On the other hand, there has been a globalization of same-sex sexualities as identities. These movements have the potential to conflict with, rather than complement, each other in terms of progressing toward a greater recognition of gay rights worldwide: resistance to cosmopolitan claims to gay rights is often grounded in communitarian claims based in the language of the right of self-determination of a people. The article argues, however—largely through the use of case studies (Tasmania, Zimbabwe, and Romania)— that the discourse of universal human rights can and has been used successfully by local gay rights activists. This has taken place through the use of several strategies: the recognition of multiple and intersecting identities; the development of a discourse by which international legal standards become part of the “essence of a people”; and by the reclaiming of an authentic gay past within a national community context. In this way, gay rights activists have become able to move seamlessly between discourses of the local and the global. Ultimately, the article concludes, gay rights struggles will be most successful when they not only engage in the protection of human rights for individuals based on international human rights standards but also fight for inclusion at the level of communitarian political debate within the larger society.

EU Human Rights Policies: A Study in Irony

Abstract: Preface Acknowledgements 1. Introduction 2. Development Policy and Human Rights 3. Accession to the EU and Human Rights 4. The Scope of Internal-External Incoherence 5. Explaining Incoherence: the Orthodox Arguments 6. The Invention of Human Rights in the EU 7. European Identity and Human Rights 8. Conclusion

Extraterritorial Application of Human Rights Treaties

Abstract: Be as it is the result of the war on terrorism, foreign military intervention, economic globalisation or otherwise, state conduct increasingly affects the human rights of individuals beyond its own borders. This book provides a comprehensive answer to the question whether existing human rights treaties are applicable in such circumstances. The principal treaties on civil and political rights require states to guarantee certain human rights to persons within their jurisdiction. What is the meaning of these terms? Are states able to evade the application of these treaties by detaining their opponents on foreign soil rather than within their own borders? Does it make a difference to the applicability of these treaties, whether a victim of an extraterritorial assassination by state agents, was a detainee, who had not been arrested? By contrast, treaties on economic, social and cultural rights tend to specifically to provide that states must strive for the full realisation of these rights through international co-operation. The problem here is that the precise nature and content of this obligation is unclear. For example, what is the extent of states' obligations to contribute to sustainable development in other states? What are their obligations as members of the executive bodies of international financial institutions such as the World Bank and the IMF? This book focuses on the extraterritorial application of four key human rights treaties: the two UN Covenants on Human Rights and the American and European Conventions on Human Rights. It reveals that supervisory bodies are inconsistent in their implementation of these treaties and discusses the pros and cons of both a restrictive and a non-restrictive approach.

An introduction to rights

Abstract: Part I. The First Expansionary Era: 1. The prehistory of rights 2. The rights of man: The Enlightenment 3. 'Mischievous nonsense'? 4. The nineteenth century: Consolidation and retrenchment 5. The conceptual neighborhood of rights: Wesley Newcomb Hohfeld Part II. The Second Expansionary Era: 6. The universal declaration and a revolt against utilitarianism 7. The nature of rights: 'choice' theory and 'interest' theory 8. A right to do wrong? Two conceptions of moral rights 9. The pressure of consequentialism 10. What is interference? 11. The future of rights 12. Conclusion.

Teaching about Global Human Rights for Global Citizenship

Abstract: uestions like these are easily articulated by most students in the United States because from an early age they frequently receive socially diffused rights messages in virtually every aspect of their lives. The United States has been described as a highly legalistic society or a polity of laws, not people. That tradition is indeed one of the hallmarks of the U.S. democracy. Television and film media illustrate that claim, awash as they are with references to laws, statutes, adjudication, and police work. Because young people, particularly adolescents, are great consumers of those visual texts, they imbibe a general understanding of, and perhaps even a taste for, this national legal fixation. The same is true for classrooms, with rights and litigation issues taking precedence over all other civic ideas, according to Avery (2002). Much of what constitutes formal rights education in the United States is focused on study of the U.S. Constitution, the Bill of Rights, emergent case law, and criminal or civil procedures. Although U.S. students are somewhat conversant with rights discourse in the national context, familiarity with global human rights, and the local-nationalglobal connections implicit therein, is lacking (O’Brien 2000; Stone 2002). A recent nationwide survey of human rights education curricula revealed that twenty states include human rights content in state-level curriculum documents, social studies standards, or assessments of social studies learning. The scope of the human rights content studied varies from state to state, however, because human rights concepts and content are often subordinated to or embedded within more pervasive subject fields, such as history, government, civics, study of the Holocaust, and genocides (Banks 2002). Students who only study rights and litigation in the United States, without considering rights in other national and global contexts, are left with a series of misunderstandings, not the least of which is that the United States has few, if any, violations of human rights or that people living in other societies have few, if any, rights. As two students in Cornbleth’s (2002) study noted, “We’re free here . . . not like other countries,” and, “in some countries, the government tells you what to do, and you have to do it. Here we have a choice of how we want things” (529). Perhaps more telling is the infrequency of use of the term human rights in textbooks, curriculum documents, and educational discourse. As O’Brien notes, “the concept of human rights is not yet part of the culture as it relates to issues inside the U.S.” (O’Brien 2000). That may be because the very notion of human rights necessarily transcends national boundaries, a paradigmatic shift not easily accepted by nations with long-standing legal traditions. Because the period between 1995 and 2004 has been declared the United Nations Decade for Human Rights Education, we believe it appropriate to address this apparent curricular imbalance. Certain questions can lead students toward a richer understanding of global human rights, and they might include the following:

Discourses of Objection: Towards an Understanding of Third-Party Rights in Planning

Abstract: Public participation is central to the practice, legitimacy, and dominant normative principles of spatial planning It has a strong presence in the discourse of communicative governance, which suggests that participatory rights should be strengthened as part of a systematic institutional design Interest in the concept of rights within planning has been gathering pace, but is still undeveloped In terms of third-party rights, attention has been focused on citizens as rights claimants and their use of rights to promote self-interest, rather than the values that should be protected by such rights or the balance of rights between different stakeholders This paper explores some of the theoretical issues related to third-party rights in planning, using the existing literature on planning disputes to contextualise current debate It examines a case study of third-party appellants in the Republic of Ireland and identifies five distinct ‘discourses of objection’ These discourses highlight the complex factors th

Gender and human rights

Abstract: The growth of the women's international human rights movement worldwide and its emergence as a field of study has led to a valuable but increasingly self-contained literature, often cut off from developments in feminist legal theory, on the one hand, and conceptions of the different legal contexts in which international human rights operate, on the other. This collection of essays brings together feminist scholars in a number of areas including international law, rights, citizenship, queer theory, constitutional law and migration studies to reflect on gender and human rights. The result is a series of fresh and sophisticated essays that situates women's international human rights in broader debates about feminism, rights and international society, providing a variety of methods and vantage points. The essays both offer perspectives on gender and human rights drawn from women's experiences with national laws and contribute to feminist analyses of law in such international and transnational arenas as war, colonialism and globalization.

The Right to Marry

Abstract: The Supreme Court has said that there is a constitutional "right to marry"; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal, their neighbors, or a sunny day. This essay attempts to make some progress in understanding both the content and the scope of the right to marry. With respect to content, it concludes that people have no more and no less than this: a right of access to whatever expressive and material benefits the state now provides for the institution of marriage. It follows that the right to marry falls within the "fundamental" rights branch of equal protection doctrine, and is not properly understood in terms of substantive due process; it also follows that the state could abolish the official institution of marriage tomorrow. With respect to scope, the essay identifies a minimal understanding, to the effect that the right to marry is enjoyed by any couple consisting of one adult man and one adult woman. The minimal understanding can claim a plausible defense in a tradition-based understanding of fundamental rights; and on institutional grounds, a tradition-based understanding has a great deal of appeal. Its problem is that it has a degree of arbitrariness. This is a formidable problem, but for reasons of prudence, federal courts should not adopt a broader understanding that would, for example, require same-sex marriages to be recognized. The essay concludes with some remarks on the possible abolition of the official institution of marriage. It explains that there are plausible grounds for objecting to that institution and that there is a real question whether the current system would be chosen if a society were starting from scratch. It emphasizes that marriage is emphatically an government-run licensing system, embodying a set of governmental mandates and conditions. An understanding of this point should inform constitutional discussion, which ought not to proceed by identifying religious and official marriage, or by pretending that the official institution is in some sense natural and foreordained.

Who should code your conduct? Trade union and NGO differences in the fight for workers' rights

Abstract: The debate over workplace codes of conduct has created tensions between trade unions and human rights NGOs. These tensions result from the inherent structural differences between interest‐driven tr...

Models for recognizing indigenous land rights in Latin America

Abstract: This paper represents an important dimension in filling Latin America history's gaps through the lens of land rights. The continent was populated by many nations, functioned in harmony with nature, had a variety of cultures and languages, and, developed many different socio-economic systems (nationally and locally). These nations were sovereign and recognized from Alaska to Patagonia. Indeed, among all of them, we know they had very advanced, and well established institutional arrangements and organizations (formal and informal), created and nurtured with the view to respond to the needs, and challenges of the time. With a variety of forms of governance, these societies did assign rights, and responsibilities to the different actors, and groups in order to maintain an acceptable level of social cohesion, to establish important political consensus. As the political systems of some countries are now becoming more democratic to listening, and embracing the views of minorities, issues of land rights have clearly surfaced. Issues of sovereignty, customary law and, simply, of traditional norms-from the national to the household levels-are being put on the table of what is clearly a complex social dialogue. The paper is an excellent source of basic information, sharing an easy and practical understanding about land tenure/titling, as discussed above. In addition, the paper represents a genuine attempt to: a) recognize the existence of these complex land rights and land titling systems across Latin America; b) study the content at the country level, so that international experiences/comparisons may spark a move towards policy coherence and legislation; and, c) demonstrate that land is not only a physical asset with some economic and financial value, but an intrinsic dimension, and part of peoples lives and belief systems. There is also a human rights dimension to all of the above. And it is essential to understand this human rights dimension of land rights, not just as a legal obligation, but as a key element of economic and social development.

The internal market and the four freedoms

Abstract: This article covers all four of the four fundamental freedoms enshrined in the EU Treaties (goods, persons, services and capital). Seven themes cutting across these freedoms are considered: whether they constitute fundamental rights; to what extent discrimination must be shown to establish a breach of one of the relevant provisions; whether export restrictions are sui generis; horizontal effect; measures internal to a Member State; the principles relating to justification; and whether there is convergence between the four freedoms.