Category Archives: Cultural embededness

The Rome Statute at 20 Years: Exploring Intersections of Law and Culture at the International Criminal Court

Julie Fraser & Brianne McGonigle Leyh

ICC logoOn 17 July 2018, the Rome Statute (RS) creating the International Criminal Court (ICC) celebrated its 20th anniversary. The ICC is a permanent court that investigates serious international crimes including genocide, crimes against humanity, and war crimes, and prosecutes individuals believed to be most responsible. In this way, the ICC promotes the rule of law internationally and seeks to end impunity for the most heinous crimes. The Statute’s agreement was a remarkable achievement many decades in the making. In the last 20 years, the ICC has grown from small beginnings into a fully-fledged court of international law. Progress has not, however, always been smooth, with many issues and obstacles arising, including in relation to culture. While international law (including international criminal law) is typically portrayed as objective and not limited or bound by a particular culture, as revealed especially in practice, law and culture cannot be so clinically separated. Culture influences our view of the law, of the facts to which it applies, and the fairness of any outcome. From the substantive charges and their defences to the scope and content of reparations and the operation of the criminal process, the impact of culture can be problematic given the nature and context of the ICC’s work. And, yet, culture and the ICC has not been comprehensively addressed in scholarship. Continue reading

“Practically unimportant”? A poor excuse or well-executed sarcasm? — On China’s constitutional amendment removing the limitation on the President’s term of office

Shuai Zhang in response to a previous blog post by Cong-rui Qiao

chinese constitutionThe National Congress of China has recently passed a highly controversial constitutional amendment removing the limitation on the President’s term of office. Consequently, it is no longer limited to two consecutive terms. While some consider this amendment as a step towards dictatorship, many are seemingly trying to interpret it in a more sympathetic way. A very popular discourse regards the change merely as a “practically unimportant” technical fine-tuning. Ironically, this argument is roughly supported by two rival groups. This blog elaborates why neither of these groups is right in labelling such a change as “practically unimportant”, and argues that the constitutional amendment is in fact very important. Continue reading

‘Every Organ of Society’: Exploring the Role of Social Institutions in the Effective Implementation of International Human Rights Law

Julie Fraser

ThiEleanor_Roosevelt_and_Human_Rights_Declarations blog was written by Julie Fraser who will defend her PhD at Utrecht University on 31 May at 10.30am.

This year we celebrate the 70th anniversary of the Universal Declaration of Human Rights (UDHR). This document continues to represent a landmark achievement of the international community. Since 1948, much progress has been achieved, with numerous human rights treaties and instruments adopted nationally, regionally, and internationally. Despite this momentum, human rights continue to be violated in all states around the world, revealing the gap between law and practice. The challenge of implementation – of making legal norms a lived reality – is now most pressing. How to address this challenge was the focus of my PhD research completed earlier this year. This research focused on criticisms of state-centricity in international human rights law, as well as its tendency to take a legalistic approach to implementation. Identifying the shortcomings of state-centric legalism, my research proposed involving informal social institutions the domestic implementation of human rights due to their cultural embeddeness and ability to guide human behaviour.

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Constitutional Amendments to China’s Presidency and Supervisory Commissions

China_State_Visit_(21706073543)Cong-rui Qiao

This blog is the first in a series on the amendments to the Chinese constitution. 

This blog is about an important affair in today’s China: the set of 21 amendments made to China’s Constitution in March 2018. It will interpret the political and practical implications of two high-profile amendments: 1) the constitutional change to the term limitation on the Presidency, which is the head of State; and 2) the constitutional inception of the State Supervisory Commission (“SSC”), which is the highest national supervisory body. It will do so in two dimensions. One is a textual reading of what has been amended in the Constitution. The other goes beyond textual aspects, explaining what changes these alterations imply. Where possible English translations to the text have been provided in the links. Continue reading

Religion is a building block not a stumbling block for the integration of Muslims

integration-1777535_960_720Tom Zwart

Again, as a result of the recent terrorist attack in London, members of the Muslim community are increasingly being portrayed as ‘different': they are painted as religious fundamentalists who cannot separate politics from religion; who treat women as being inferior to men; and who offer the cold shoulder to LGBT. There are calls for the banning of certain orthodox Muslim religious organisations; the exclusion of religious symbols from public life; the constitutional entrenchment of ‘our values'; and the active ‘integration’ of Muslims into mainstream society. During his 2011 speech before the Munich Security Conference then Prime Minister Cameron called for replacing the passive tolerance of recent years by a much more active, muscular liberalism: “A passively tolerant society says to its citizens: as long as you obey the law, we will leave you alone. It stands neutral between different values. A genuinely liberal country does much more. It believes in certain values and actively promotes them.”  Continue reading

Local Resident Committee: Promoting access to justice for migrant women domestic helpers in China

Hukou_zhQinxuan Peng

China has undergone great transformation in the turbulent years since the establishment of the new government in 1949. New practices have been woven with old traditions into a complicated social background. This has many implications, including for the living status of migrant women working as domestic helpers in China. According to estimates, there are more than 270 million migrant workers with rural living registration (Hukou) working in urban areas, who are therefore excluded from various public services and social benefits supported by urban governments. With an increasing number of women in China entering the labour market, gender discrimination, the gender pay gap, and occupation segregation are still conspicuous in practice. With the economic boost and labour expansion, millions of domestic workers are in need throughout China, yet their basic human and labour rights are not guaranteed by law. An extreme illustrative case about the poor working situation is that of Cai Minmin, a rural migrant girl working as a domestic servant who was abused for five years by her host, which perhaps reveals the tip of an Iceberg. Continue reading

The Rainy Season in Java: Researching the Role of Islamic Law and Institutions in Promoting Women’s Right to Family Planning in Indonesia

blogFraserJulie Fraser

Six weeks of melting humidity, spicy food, tropical vegetation, and endless traffic. I was in Indonesia to research how women’s reproductive rights and family planning are protected, with a particular focus on the role of Islamic laws and institutions. This is a complex topic, requiring expertise in matters of women’s rights, public health, demographics, and Islamic law. My visit to Indonesia was part of a crash course in all these fields – a type of sink or swim scenario. My experience there highlighted the role of non-state actors in the promotion and protection of human rights, and the need for domestic constituents working within their communities to secure such rights. I chose Indonesia as my case study as it is the largest Muslim state in the world, has strong plural legal systems and Islamic institutions, and has faced barriers in promoting and protecting women’s reproductive rights. As it turned out, Indonesia was an excellent choice, and a good teacher.

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Should the national day be considered as the birthday of the mother country? The conflict between two kinds of outlooks on the concept of “country”

 

national_day_decorations_-_beihai_parkSjaak Zhang

During the past week, China was celebrating its 67th national day; meanwhile, an intense controversy as to whether the national day should be considered as the birthday of the mother country arose, which has demonstrated Chinese people’s confusion about what constitute a country. This blog seeks to briefly explain where such confusion lies, and how it comes. Continue reading

Duality or Complementarity?The Political and Legal Orientations of the Chinese Petitioning Mandate

china_administrative_claimed_included-svgCong-rui Qiao

On 14 September 2016, the Chinese State Bureau for Complaint Letters and Visits (“Bureau”) in Beijing saw 24 lawyers providing legal advice for the petitioners. This was the first experiment of the joint-program between the Ministry of Justice and the Bureau, which aims to resolve litigation-related petitions. With much attention given to the ongoing reforms, this blog offers a brief analysis on the major characteristics and challenges of the Chinese petitioning system. Continue reading

Why the Tribunal Dealing with the South China Sea Dispute Should Step Aside to Make Way for a Negotiated Settlement

Tom Zwart

 2000px-south_china_sea_location_map-svgIncreasingly, in the West, in the class rooms of law schools and offices of foreign ministries, international law is being associated exclusively with courts and tribunals. The idea seems to be that something can only be regarded as law if it emanates from an international court. This judicialization of international law overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, which still are the main actors in international law. Continue reading