Search result: 14 articles

x
Artikel

Access_open The Peer Review Process of the Global Forum on Transparency and Exchange of Information for Tax Purposes

A Critical Assessment on Authority and Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords Global Forum on Transparency and Exchange of Information, exercise of regulatory authority, due process requirements, peer review reports, legitimacy
Authors Leo E.C. Neve
AbstractAuthor's information

    The Global Forum on transparency and exchange of information for tax purposes has undertaken peer reviews on the implementation of the global standard of exchange of information on request, both from the perspective of formalities available and from the perspective of actual implementation. In the review reports Global Forum advises jurisdictions on required amendments of regulations and practices. With these advices, the Global Forum exercises regulatory authority. The article assesses the legitimacy of the exercise of such authority by the Global Forum and concludes that the exercise of such authority is not legitimate for the reason that the rule of law is abused by preventing jurisdictions to adhere to due process rules.


Leo E.C. Neve
Leo Neve is a doctoral student at the Erasmus School of Law, Rotterdam.
Artikel

Access_open The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights

Journal Erasmus Law Review, Issue 3 2017
Keywords same-sex marriage, gay marriage, European consensus, margin of appreciation, consensus-based analysis by the ECtHR
Authors Masuma Shahid
AbstractAuthor's information

    This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.


Masuma Shahid
Lecturer, Department of International and European Union Law, Erasmus School of Law, Rotterdam.
Artikel

Access_open Religious Freedom of Members of Old and New Minorities: A Double Comparison

Journal Erasmus Law Review, Issue 3 2017
Keywords ECtHR, UNHRC, religious manifestations, religious minorities, empirical analysis
Authors Fabienne Bretscher
AbstractAuthor's information

    Confronted with cases of restrictions of the right to manifest religious beliefs of new religious minorities formed by recent migration movements, the ECtHR and the UNHRC seem to opt for different interpretations and applications of this right, as recent conflicting decisions show. Based on an empirical legal analysis of the two bodies’ decisions on individual complaints, this article finds that these conflicting decisions are part of a broader divergence: While the UNHRC functions as a protector of new minorities against States’ undue interference in their right to manifest their religion, the ECtHR leaves it up to States how to deal with religious diversity brought by new minorities. In addition, a quantitative analysis of the relevant case law showed that the ECtHR is much less likely to find a violation of the right to freedom of religion in cases brought by new religious minorities as opposed to old religious minorities. Although this could be a hint towards double standards, a closer look at the examined case law reveals that the numerical differences can be explained by the ECtHR’s weaker protection of religious manifestations in the public as opposed to the private sphere. Yet, this rule has an important exception: Conscientious objection to military service. By examining the development of the relevant case law, this article shows that this exception bases on a recent alteration of jurisprudence by the ECtHR and that there are similar prospects for change regarding other religious manifestations in the public sphere.


Fabienne Bretscher
PhD candidate at the University of Zurich.
Redactioneel

Access_open Introduction

Journal Erasmus Law Review, Issue 3 2017
Authors Kristin Henrard
Author's information

Kristin Henrard
Kristin Henrard is Professor of fundamental rights and minorities at the Erasmus School of Law, more particularly the Department of International and EU Law. She teaches courses on advanced public international law, international criminal law, human rights and on minorities and fundamental rights.

    This article sets out to contribute to the special issue devoted to multi-disciplinary legal research by discussing first the limits of purely doctrinal legal research in relation to a particular topic and second the relevant considerations in devising research that (inter alia) draws on non-legal, auxiliary disciplines to ‘fill in’ and guide the legal framework. The topic concerned is the (analysis of the) fundamental rights of minorities.
    The article starts with a long account of the flaws in the current legal analysis of the European Court of Human Rights regarding minorities’ rights, particularly the reduction in its analysis and the related failure to properly identify and weigh all relevant interests and variables. This ‘prelude’ provides crucial insights in the causes of the flaws in the Court’s jurisprudence: lack of knowledge (about the relevant interests and variables) and concerns with the Court’s political legitimacy.
    The article goes on to argue for the need for multi-disciplinary legal research to tackle the lack of knowledge: more particularly by drawing on sociology (and related social sciences) and political philosophy as auxiliary disciplines to identify additional interests and variables for the rights analysis. The ensuing new analytical framework for the analysis of minorities’ rights would benefit international courts (adjudicating on human rights) generally. To operationalise and refine the new analytical framework, the research should furthermore have regard to the practice of (a selection of) international courts and national case studies.


Kristin Henrard
Professor of minorities and fundamental rights at the Erasmus School of Law.
Artikel

Access_open Global Citizens and Family Relations

Journal Erasmus Law Review, Issue 3 2014
Keywords global governance, family relations, nationality, habitual residence, party autonomy
Authors Professor Yuko Nishitani Ph.D.
AbstractAuthor's information

    As globalisation progresses, cross-border movements of people are becoming dynamic and multilateral. The existence of different groups and minorities within the community renders the society multiethnic and multicultural. As individuals acquire new affiliation and belonging, the conventional conflict of laws methods may no longer be viable and should be subject to a thorough re-examination. Against this background, this paper analyses appropriate conflicts rules in international family relations to reflect an individual’s identity. Furthermore, in light of the contemporary law fragmentation, this study also analyses interactions between state law and non-state cultural, religious or customary norms.


Professor Yuko Nishitani Ph.D.
Professor at Kyushu University Faculty of Law, Japan. This work was supported by the JSPS Grants-in-Aid for Scientific Research (C) (Grant Number 26380063). The author sincerely thanks Professor Carol Lawson (Nagoya University) and Ms. Nettie Dekker for their devoted editing work.
Article

Access_open A Turn to Legal Pluralism in Rule of Law Promotion?

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, rule of law promotion, legal reform, customary law, non-state legal systems, donor policy
Authors Dr.mr Ronald Janse
AbstractAuthor's information

    Over the past 25 years, international organizations, NGOs and (mostly Western) states have spent considerable energy and resources on strengthening and reforming legal systems in developing countries. The results of these efforts have generally been disappointing, despite occasional successes. Among donors, one of most popular explanations of this failure in recent years is that rule of law promotion has wrongly focused almost exclusively on strengthening the formal legal system. Donors have therefore decided to 'engage' with informal justice systems. The turn to legal plu‍ra‍lism is to be welcomed for various reasons. But it is also surprising and worrisome. It is surprising because legal pluralism in developing countries was a fact of life before rule of law promotion began. What made donors pursuing legal reform blind to this reality for so long? It is worrisome because it is not self-evident that the factors which have contributed to such cognitive blindness have disappeared overnight. Are donors really ready to refocus their efforts on legal pluralism and 'engage' with informal justice systems? This paper, which is based on a review of the literature on donor engamenet with legal pluralism in so-called conflict affected and fragile states, is about these questions. It argues that 7 factors have been responsible for donor blindness regarding legal pluralism. It questions whether these factors have been addressed.


Dr.mr Ronald Janse
Ronald Janse is Associate Professor of Law, University of Amsterdam, The Netherlands.
Article

Access_open Unity in Multiplicity: Shared Cultural Understandings on Marital Life in a Damascus Catholic and Muslim Court

Journal Erasmus Law Review, Issue 3/4 2013
Keywords Syria, personal status law, Eastern Catholic law, patriarchal family, marital obligations
Authors Esther Van Eijk Ph.D.
AbstractAuthor's information

    Family relations in Syria are governed by a plurality of personal status laws and courts. This plurality manifests itself on a variety of levels, including statutory, communal and individual. In this article, the author argues that, albeit this plurality, Syrian personal status law is also characterised by the prevalence of shared, gendered norms and views on marital life. Based on fieldwork conducted in a Catholic and a shar’iyya personal status courts in Damascus in 2009, the author examines the shared cultural understandings on marital relationships that were found in these courts, and as laid down – most importantly – in the respective Catholic and Muslim family laws. The article maintains that the patriarchal family model is preserved and reinforced by the various personal status laws and by the various actors which operated in the field of personal status law. Finally, two Catholic case studies are presented and analysed to demonstrate the importance and attachment to patriarchal gender norms in the Catholic first instance court of Damascus.


Esther Van Eijk Ph.D.
Esther Van Eijk is a postdoc researcher at Maastricht University, The Netherlands. She recently defended (September 2013) her Ph.D. thesis entitled ‘Family Law in Syria: A Plurality of Laws, Norms, and Legal Practices’ at Leiden University, the Netherlands. This study is based on her PhD fieldwork (including interviews and participant observation) conducted in March-April 2008, and October 2008-July 2009 in Syria.

Wibo van Rossum

Sanne Taekema
Article

Access_open Human Rights Courts Interpreting Sustainable Development: Balancing Individual Rights and the Collective Interest

Journal Erasmus Law Review, Issue 2 2013
Keywords Operationalizing sustainable development, human rights, individual rights/interests, collective rights/interests, human rights courts
Authors Emelie Folkesson MA
AbstractAuthor's information

    This article uses a generally accepted conceptualisation of sustainable development that can be operationalized in a judicial context. It focuses on the individual and collective dimensions of the environmental, economic and social pillars, as well as the consideration of inter-generational and intra-generational equity. Case law from the European, African and American systems is analysed to reveal if the elements of sustainable development have been incorporated in their jurisprudence. The analysis reveals that the human rights bodies have used different interpretative methods, some more progressive than others, in order to incorporate the elements of sustainable development in the scope of their mandate, even if they do not mention the concept as such. The overall conclusion is that sustainable development has been operationalized through human rights courts to a certain extent. Sometimes, however, a purely individualised approach to human rights creates a hurdle to further advance sustainable development. The conclusion creates the impression that sustainable development is not just a concept on paper, but that it in fact can be operationalized, also in other courts and quasi-courts. Moreover, it shows that the institutional structure of human rights courts has been used in other areas than pure human rights protection, which means that other areas of law might make use of it to fill the gap of a non-existing court structure.


Emelie Folkesson MA
PhD Candidate in public international law, Erasmus University Rotterdam. The author would like to thank Prof. Ellen Hey, Prof. Klaus Heine and two anonymous reviewers for their valuable insights and constructive comments on the drafts of this article. The usual disclaimer applies.

Wouter de Been
Assistant Professor, Department of Jurisprudence, Erasmus School of Law.

Sanne Taekema
Professor of Jurisprudence, Erasmus School of Law.

Kristin Henrard
Professor of Minority Protection at the Erasmus University Rotterdam.

Markha Valenta
Markha Valenta is an Assistant Professor in the department of American Studies at Radboud University Nijmegen. Her current research concerns the politics of religion and culture in global cities, international relations and secular democracies, Her work is interdisciplinary and internationally comparative, with a focus on the United States, the Netherlands, and India.

Monika Ambrus

Marjolein Busstra

Kristin Henrard
Monika Ambrus is assistant professor at the Erasmus University of Rotterdam; Marjolein Busstra is policy advisor at the Netherlands Ministry of Foreign Affairs; Kristin Henrard is professor of minority protection also at the Erasmus University of Rotterdam. This publication has been made possible by a generous VIDI grant of the Netherlands Foundation of Scientific Research. The authors wish to thank an anonymous referee and the editorial board of the Erasmus Law Review for thoughtful comments. The usual disclaimer applies.
Interface Showing Amount

Sign up for email alert

If you sign up for the free email alert from Erasmus Law Review, you will automatically receive a message when a new article is published on the website.

Subscribe

You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.