Search Results (32)

The article examines possible amendments to the Australian legislative regime regulating and protecting Indigenous cultural heritage in an offshore, including underwater, context. It suggests that there are significant reforms that are needed to bring the existing domestic legislative regime into conformity with the expectations of contemporary international law, particularly as manifested in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In reaching this conclusion, the article proceeds by examining recent Australian jurisprudence and archaeological studies, considering offshore Indigenous cultural heritage as well as the current Australian domestic legislative framework. It then proceeds to examine the relevant provisions of both UNDRIP and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (UCH Convention). The article identifies that the UCH Convention operates to ignore any legitimate role for Indigenous peoples and does not provide an appropriate foundation for legislative reform. The article concludes by suggesting the content of appropriate legislative reforms that accord with the expectations in UNDRIP. Full article

Ecological ethics is gaining traction. Can this new attitude towards our ecosystems help to motivate a change in our relationship with land and nature? Can we move towards a legal system that supports the legal personality of land, devoid of human ownership? There are substantial amounts of international environmental laws that have been hovering on the fringes of defining and then redefining our relationship with land, with more emphasis on respecting the land as itself rather than as a vehicle with which humanity can gain wealth. This article briefly explores the conjunction of international environmental law history and ecological ethics in the hope that it will encourage a segue in our approach to conservation, ecology, and being. Full article

This article offers a Thomist response to Brian Leiter’s Why Tolerate Religion?, challenging his claim that religion does not merit distinct legal protection. While Leiter assumes religion to be epistemically irrational—defined by existential consolation, categorical demands, and insulation from evidence—this article draws on John Finnis’s interpretation of Saint Thomas Aquinas (d. 1274) to reconstruct religion as a basic good of practical reason. It proposes a three-tiered model of religion—as human quest, natural religion, and revealed religion—which clarifies religion’s internal structure and civic relevance. Developing this model against Leiter’s critique, this article shows that religion, so understood, can be legally protected even on Leiter’s liberal terms, through both Rawlsian and Millian frameworks. The article also extends its argument to “second-wave” law-and-religion controversies, illustrating how a Thomist framework illuminates debates about ideological establishments, identity politics, and public reason. Through original syntheses and rigorous normative analysis, this article advances a conceptually fresh and publicly accessible model of religion for law and public policy. It also speaks to pressing constitutional debates in the U.S. and Europe, thus contributing to transatlantic jurisprudence on religious freedom and the moral purposes of law. Religion still matters—and must be understood—not as conscience, but qua religion. Full article

Ritual slaughter—understood as the killing of animals without prior stunning for religious purposes—constitutes a legally and ethically intricate domain, situated at the intersection of animal welfare, freedom of religion, public health, and consumer protection. This review offers a critical examination of the influence exerted by international and supranational jurisprudence—most notably the case law of the Court of Justice of the European Union—on the regulatory landscape governing ritual slaughter. While the right to religious freedom enjoys robust protection under European constitutional and human rights frameworks, recent judicial decisions have affirmed the legitimacy of national legislative measures mandating pre-slaughter stunning, insofar as such measures pursue objectives of animal welfare and transparency in the public interest. Particular attention is devoted to seminal rulings originating in Belgium and within the broader EU context, with a focus on the application of the principle of proportionality as a legal mechanism for balancing colliding fundamental rights. The analysis further engages with the scientific and ethical discourse surrounding animal suffering and the legal obligations tied to consumer information and labeling. Taken together, these developments reveal an emergent trajectory within EU law toward the progressive tightening of regulatory standards governing ritual slaughter, shaped by an evolving jurisprudential understanding of animal welfare imperatives. Full article

The evolution of disability rights jurisprudence in Peru’s Constitutional Court (2004–2024) demonstrates a paradigm shift from medical to social models of disability. This research analyzes key Constitutional Court decisions through documentary analysis, identifying three distinct periods: early medical model jurisprudence (2004–2009), transitional incorporation of international standards (2010–2015), and consolidation of the social model (2016–2024). Findings reveal how the Court’s reasoning evolved from focusing on individual impairments and rehabilitation to recognizing disability as arising from societal barriers. The Court progressively developed sophisticated legal standards for disability discrimination, reasonable accommodation, and recognition of communication rights. Despite significant jurisprudential advancement, implementation challenges persist across institutional contexts, evidencing gaps between progressive legal frameworks and practical application. This study contributes to understanding how constitutional courts can drive paradigmatic shifts in human rights protection while highlighting the limitations of judicial interpretation alone in achieving disability rights implementation. Full article

Within the European socio-cultural landscape, which is increasingly attuned to animal welfare concerns and characterized by growing multiculturalism, ritual slaughter has become a subject of considerable debate due to its legal, economic, and health implications. This debate is increasingly fueled by interventions by judicial bodies that, not infrequently, have filled protection gaps in legislation on the relationship between human rights and the treatment of animals. In this review, the authors aim to describe the evolutionary path of supranational jurisprudence in the case of religious slaughter, focusing on the most recent animal welfare decision rendered by the European Court of Human Rights (ECHR) on 13 February 2024. This innovative judgement, in line with other precedents, indicates the orientation of the international and European law, which, driven by public morality, is increasingly characterized by the compression of human rights in favor of animal interests. Full article

South Africa’s democracy turned 30 years old in 2024. At the same time, its constitutional order and jurisprudence marked three decades since the Interim Constitution and its successor, the 1996 Constitution, came into operation. Coincidentally, the Universal Declaration of Human Rights (UDHR) turned 75 years old in the previous year, 2023. The confluence of these facts is quite poignant in the context of a constitutional text that is often lauded for its commitment to the protection of human rights and the eradication of the injustices of the past, which were firmly entrenched by the segregationist policies of the apartheid regime. At the centre of this hype about South African constitutional jurisprudence is the centrality of international law to the interpretation of the Bill of Rights as well as the development of the common law, customary law, and statutory law. With the UDHR being such a central pillar in the human rights sector, this study set out to determine the extent to which the Constitutional Court of South Africa relied on the UDHR and other international instruments in carrying out the mandate set out above. The study analysed cases delivered by the Court in two separate years, spaced ten years apart. The study did not necessarily attempt to determine a correlation, but simply to use descriptive statistics to determine how often, in those two years, the Court relied on international law in general, and on the UDHR in particular, in its interpretive and legal development mandate. Full article

As forced migration increases dramatically due to such factors as climate change, rising conflict, and authoritarianism, more legal cases on human trafficking and sex work are sure to arise. To date, very few cases on these issues have been decided in international human rights tribunals, and they have been subject to extensive criticism, especially for their conflation of slavery, human trafficking, forced prostitution, and consensual sex work. This article analyzes recent jurisprudence from Europe and Africa to address this conceptual confusion and argue that tribunals must interrogate their use of the terms dignity and exploitation or risk further marginalizing already marginalized people. Full article

The ILA Study Group began its work by identifying guiding principles that should frame and inform state practices with respect to children in migration. These principles included, but were not limited to, non-discrimination; the best interests of the child; the right to life, survival, and development; the right of the child to express their views on all matters affecting them; and the right to an effective remedy. The Study Group identified some of the most common rights violations for children in migration such as arbitrary age assessment practices; inadequate and age-inappropriate reception policies and facilities; and immigration detention of children and other coercive practices. The Study Group undertook a multidisciplinary approach by summarizing the research documenting the harmful effects of these practices on child health and well-being. It surveyed (1) treaties and international instruments that might recognize a right or remedy for children on the move; (2) regional and international fora where the claims of children could be heard; and (3) the growing body of regional and international jurisprudence upholding the rights of children in migration. Finally, it identified gaps in the international and regional frameworks and formulated recommendations as to how to ensure children in migration are able to enforce their rights and access justice. Full article

This article argues for incommensurability, incoherence, and difference as the grounds through which to think about sexualized harm and its redress. It seeks to remove the “me” from the “too”, and to instead consider the structures of white supremacy and neocolonial power that have facilitated white Western feminists’ ability to participate in shaping a hegemonic discourse of sexualized harm and its transnational travelling. The article traces the author’s personal genealogy of rights work in the context of shifts in international jurisprudence in relation to wartime sexualized violence. It looks back and reflects on an eight-year feminist participatory action research project that accompanied 54 Mayan women protagonists who survived a multiplicity of harm, including sexual violence, during Guatemala’s 36-year genocidal war. The project documented the protagonists’ engagement with transitional justice mechanisms, including a paradigmatic court case and a national reparations program, as part of their struggles for redress. The concept of “protagonism” is used to understand agency in the aftermath of genocidal violence as relational, co-constructed, and imbued with power. The meaning of sexualized harm is always “in-translation” between Western and Mayan onto-epistemological positionings, as Mayan women seek to suture land-body-territory in their multifaceted strategies for redress that engage but always exceed rights regimes. Full article

This research aims to investigate how to protect workers from discrimination dictated by an algorithm in the contractual conditions. Article 15 of the Italian Workers’ Statute declares invalid any agreement or act aimed at: dismissing a worker, discriminating him in the assignment of qualifications or tasks, transfers, disciplinary measures, or otherwise prejudicing him because of his affiliation or union activity, or his participation in a strike. These provisions shall also apply to pacts or acts for the purposes of political, religious, racial, language, sex, disability, age, sexual orientation, or belief. Our work intends to explore the risk of gender or age discrimination in the contractual terms for platform workers in Italy. How can workers’ protections be preserved when decisions are made by an algorithm? The research is conducted with a multidisciplinary methodology. We first analyze both national and international literature and jurisprudence. Then, by means of probit models on INAPP PLUS 2021 survey data, we analyze contract characteristics, in particular the written form of the contract and the hourly minimum wage. Controlling for individual and job characteristics, we find evidence of discrimination according to gender and age of workers. We conclude with policy recommendations. Full article

This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians of children in terms of the common law and uphold the best interests of the child as a paramount principle. The Chief Family Advocate (“FA”) has been appointed as the Central Authority (“CA”) and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions. How SA approaches international child abduction, and applies the HC, is explored. SA has a rich jurisprudence around the practical application of the HC. The procedure in these matters; the general rules and exceptions; the voice, representation and participation of the child; and the approach to children’s best interests and measures to protect their interests are evaluated. SA’s approach in regard to HC matters could be improved. How the challenges of an independent best-interests factor, outcomes veering away from the return principles, the FA’s compromised role as the CA, and the delays in outcomes prejudice the HC’s philosophy and the application thereof are considered. Recommendations are made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA’s future. Full article

A recent trend can be seen in jurisprudence concerning the Hague Convention on the Civil Aspects of International Child Abduction, at least in the Australasia/Pacific region. Courts are now more mindful of the abducted child in particular and will investigate the true impacts of returning the child to determine what is in their best interests, particularly in cases of domestic violence. This is a departure from the long-standing emphasis on returning abducted children promptly to their country of habitual residence, after which the courts of that country will make the final decision, because it is generally in the best interests of children to deter child abduction. This article compares various jurisdictions’ approaches with the lens of whether the courts are preferring the particular child over the ‘theoretical’ child. Full article

Global ocean governance is the concretization of global governance. Various interest groups interact with and coordinate ocean issues. Global ocean governance is inevitably linked to the new global governance landscape. In recent years, a series of new scenarios in global governance have emerged. These situations have further shaped the plurality of participants and the diversity of mechanisms in global ocean governance. Science and technology innovation and application are prerequisites and prime movers for the evolution of global ocean governance. Major worldwide crises, represented by global climate change and the coronavirus disease 2019 pandemic, have added great uncertainty to the future development of global ocean governance. The divergence of interests and positions between emerging countries and developed countries, as well as the reshaping of the global geopolitical landscape in recent years, has led to the stagnation or deadlock of a series of international negotiations and international cooperation platforms related to global ocean governance. With the deepening of global governance, non-state actors are not only objects of ocean governance but also bearers of legal obligations and enjoy varying degrees of legal rights, participating in agenda setting, rule construction, and monitoring implementation at different levels of ocean governance. From a critical jurisprudence perspective, in the practice of global ocean governance, the relationship between non-governmental organizations, states, and international organizations is more likely to be one of reconciliation than the “state–civil society” dichotomy of moral imagination. This new set of circumstances exposes the divisive and fragmented nature of global ocean governance. This study concludes that the new situation of global ocean governance constitutes a historic opportunity for countries to reexamine the role of the rule of law during the Anthropocene to bridge the fragmentation and gaps in mechanisms and achieve a truly integrated, holistic, and closely nested global ocean governance. The question of how to implement the rule of law requires the introduction of theoretical perspectives such as the Anthropocene, complex systems theory, and the community of a shared future for humanity to undertake a fundamental critical reflection and rethinking of global ocean governance. Full article

Introduction: “Human capital” is defined as an integration of innate skills and knowledge acquired by investing in the formation of an individual; it is a real “capital” that pays off in the long term. In the Italian legal system, a human being is recognised as a “person” from the moment of birth. This determines the acquisition of the personal rights of an individual. Necessarily, therefore, by law, a fetus does not own such rights; nevertheless, it has an innate “potential” to acquire such rights after birth. Objective: In Italian jurisprudence, in general, the damage from a loss of a parental relationship is justified by the condition of existential emptiness caused in the family by the loss of a child. Compensation for this damage in the event of abortion due to third-party responsibility presents a non-uniform recognition in the judgements of the Italian courts, but in any case, it is almost always recognised with limitations since the emotional relationship with the lost individual is defined only in terms of “potential”. Consequently, in this matter, at least two questions can be raised: (i) Is the economic estimate of abortion based on objective and standardised criteria, or is it heavily influenced by subjective evaluation? (ii) Is it possible to find standard criteria that may act as guidelines to quantify the loss of that human capital “in progress”? Methodology: The authors try to answer these questions by analysing the different approaches to this issue adopted at an international level. Conclusions: In conclusion, the authors propose homogeneous criteria to quantify the damage caused by abortion. Full article