NEW HUMAN RIGHTS LAW TITLES FROM HART PUBLISHING
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Human Rights and Drug Control
The False Dichotomy
It has become almost accepted knowledge within international policy circles that efforts against drug trafficking and drug abuse violate human rights, and that the entire international drug control regime needs to be changed (or even discarded altogether) to adopt a more ‘rights respecting’ approach. Though this view has been promoted by many prominent figures and organisations, the author of this book uses his expertise in both human rights and drug control to show that the arguments advanced in this area do not stand close scrutiny. The arguments are in fact based on selective and questionable interpretations of international human rights standards, and on a general notion – more and more clearly stated – that there is a human right to take drugs, and that any effort to combat drug abuse by definition violates this right. There is no such right in international law, and the author objects to the misuse of human rights language as a marketing tool to bring about a ‘back door’ legalisation of drugs. Human rights issues must be addressed, but that in no way means that the international drug control regime must be discarded, or that efforts against drugs must be stopped.
Saul Takahashi teaches human rights law at Aoyama Gakuin University, in Tokyo. His previous positions include Refugee Officer at the International Secretariat of Amnesty International, Drug Control Officer at the Secretariat of the International Narcotics Control Board, and Deputy Head of Office in Occupied Palestine for the Office of the UN High Commissioner for Human Rights. He has authored numerous publications in English and Japanese.
Aug 2016 | 9781849467063 | 208pp | Hbk | RSP: £55
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The EU Accession to the ECHR
Edited by Vasiliki Kosta, Nikos Skoutaris and Vassilis P. Tzevelekos
Article 6 of the Treaty on European Union (TEU) provides that the EU will accede to the system of human rights protection of the European Convention on Human Rights (ECHR). Protocol No 9 in the Treaty of Lisbon opens the way for accession. This represents a major change in the relationship between two organisations that have co-operated closely in the past, though the ECHR has hitherto exercised only an indirect constitutional control over the EU legal order through scrutiny of EU Member States. The accession of the EU to the ECHR is expected to put an end to the informal dialogue, and allegedly also competition between the two regimes in Europe and to establish formal (both normative and institutional) hierarchies.
In this new era, some old problems will be solved and new ones will appear. Questions of autonomy and independence, of attribution and allocation of responsibility, of co-operation, and legal pluralism will all arise, with consequences for the protection of human rights in Europe.
This book seeks to understand how relations between the two organisations are likely to evolve after accession, and whether this new model will bring more coherence in European human rights protection. The book analyses from several different, yet interconnected, points of view and relevant practice the draft Accession Agreement, shedding light on future developments in the ECHR and beyond. Contributions in the book span classic public international law, EU law and the law of the ECHR, and are written by a mix of legal and non-legal experts from academia and practice.
Vasiliki Kosta is Assistant Professor of European Law at Leiden University.
Nikos Skoutaris is Lecturer of EU Law at the University of East Anglia and Visiting Senior Fellow at the European Institute, London School of Economics.
Vassilis Tzevelekos is a Lecturer in Public International Law at the University of Hull.
Aug 2016 | 9781509909261 | 402pp | Pbk | RSP: £32.99
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The Reception of Asylum Seekers under International Law
Between Sovereignty and Equality
Increasingly, European states are using policy on the reception of asylum seekers as an instrument of immigration control, eg by deterring the lodging of asylum applications, preventing integration into their societies and exercising a large degree of control over asylum seekers in order to facilitate expulsion. The European Union is currently engaged in a process of developing minimum conditions for the reception of asylum seekers, as part of a Common European Asylum System. This book critically examines the outcomes of the negotiation process on these minimum standards – Directive 2003/9/EC and Directive 2013/33/EU – in relation to international refugee law, international social security law and international human rights law. It presents a comprehensive analysis of state obligations that stem from these different fields of law with regard to asylum seekers’ access to the labour market and social security benefits and compares them to the minimum standards developed in the European Union. To this end, it offers an in-depth study into the notion of non-discrimination on the basis of nationality in the field of social security and a detailed analysis of recent developments in the case law of the European Court on Human Rights on positive obligations in the socioeconomic sphere. It takes into account both the special characteristics of international legal obligations for states in the socioeconomic sphere and the legal consequences of the tentative legal status of asylum seekers. In addition, this book particularly examines how the instrumental use of social policy relates to international law.
Lieneke Slingenberg is Assistant Professor of Migration Law at the VU University Amsterdam.
Aug 2016 | 9781509909254 | 430pp | Pbk | RSP: £29.99
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EU Asylum Procedures and the Right to an Effective Remedy
Adequate and fair asylum procedures are a precondition for the effective exercise of rights granted to asylum applicants, in particular the prohibition of refoulement. In 1999 the EU Member States decided to work towards a Common European Asylum System. In this context the Procedures Directive was adopted in 2005 and recast in 2013. This directive provides for important procedural guarantees for asylum applicants, but also leaves much discretion to the EU Member States to design their own asylum procedures. This book examines the meaning of the EU right to an effective remedy in terms of the legality and interpretation of the Procedures Directive in regard to several key aspects of asylum procedure: the right to remain on the territory of the Member State, the right to be heard, the standard and burden of proof and evidentiary assessment, judicial review and the use of secret evidence.
Marcelle Reneman is Assistant Professor in the Migration Law Section of the Department of Constitutional and Administrative Law at the VU University Amsterdam.
Aug 2016 | 9781509907427 | 428pp | Pbk | RSP: £30
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Nationality and Statelessness in the International Law of Refugee Status
International refugee law anticipates state conduct in relation to nationality, statelessness, and protection. Refugee status under the Convention relating to the Status of Refugees 1951 and regional and domestic instruments referring to it can be fully understood only against the background of international laws regarding nationality, statelessness, and the consequences of national status or the lack of it. In this significant addition to the literature a leading practitioner in these fields examines, in the light of international law, key issues regarding refugee status including identification of ‘the country of his nationality’, concepts of ‘effective nationality’, and the inclusion within ‘persecution’ of a range of acts or omissions focused on nationality.
Eric Fripp is a barrister specialising in public, immigration and asylum law at Lamb Building, Temple.
Sept 2016 | 9781782259213 | 416pp | Hbk | RSP: £70
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Governing (Through) Rights
Taking a critical attitude of dissatisfaction towards rights, the central premise of this book is that rights are technologies of governmentality. They are a regulating discourse that is itself managed through governing tactics and techniques – hence governing (through) rights. Part I examines the ‘problem of government’ (through) rights. The opening chapter describes governmentality as a methodology that is then used to interrogate the relationship between rights and governance in three contexts: the international, regional and local. How rights regulate certain identities and conceptions of what is good governance is examined through the case study of non-state actors, specifically the NGO, in the international setting; through a case study of rights agencies, and the role of experts, indicators and the rights-based approach in the European Union or regional setting; and, in terms of the local, the challenge that the blossoming language of responsibility and community poses to rights in the name of less government (Big Society) is problematised. In Part II, on resisting government (through) rights, the book also asks what counter-conducts are possible using rights language (questioning rioting as resistance), and whether counter-conduct can be read as an ethos of the political, rights-bearing subject and as a new ethical right. Thus, the book bridges a divide between critical theory (ie Foucauldian understandings of power as governmentality) and human rights law.
Bal Sokhi-Bulley is Senior Lecturer in Law and Critical Theory at the University of Sussex.
Sept 2016 | 9781849467391 | 184pp | Hbk | RSP: £50
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Corruption and Human Rights Law in Africa
This important new book provides a framework for complementarity between promoting and protecting human rights and combating corruption. The book makes three major points regarding the relationship between corruption and human rights law. First, corruption per se is a human rights violation, insofar as it interferes with the right of the people to dispose of their natural wealth and resources and thereby increases poverty and frustrates socio-economic development. Second, corruption leads to a multitude of human rights violations. Third, the book demonstrates that human rights mechanisms have the capacity to provide more effective remedies to victims of corruption than can other criminal and civil legal mechanisms.
The book takes up one of the pervasive problems of governance–large-scale corruption–to examine its impact on human rights and the degree to which a human rights approach to confronting corruption can buttress the traditional criminal law response. It examines three major aspects of human rights in practice–the importance of governing structures in the implementation and enjoyment of human rights, the relationship between corruption, poverty and underdevelopment, and the threat that systemic poverty poses to the entire human rights edifice.
The book is a very significant contribution to the literature on good governance, human rights and the rule of law in Africa.
Kolawole Olaniyan is Legal Adviser in Amnesty International’s International Secretariat, London. Between 2004-2007 he was Program Director for Africa. He received his doctoral degree from the Law School of the University of Notre Dame, USA in 2003 and has written extensively on corruption and African regional human rights system.
Sept 2016 | 9781509908455 | 440pp | Pbk | RSP: £24.99
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Criminal Fair Trial Rights
Article 6 of the European Convention on Human Rights
The Article 6 fair trial rights are the most heavily-litigated Convention rights before the European Court of Human Rights, generating a large and complex body of case law. With this book, Goss provides an innovative and critical analysis of the European Court’s Article 6 case law.
The category of ‘fair trial rights’ includes many component rights. The existing literature tends to chart the law with respect to each of these component rights, one by one. This traditional approach is useful, but it risks artificially isolating the case law in a series of watertight compartments.
This book takes a complementary but different approach. Instead of analysing the component rights one by one, it takes a critical look at the case law through a number of ‘cross-cutting’ problems and themes common to all or many of the component rights. For example: how does the Court view its role in Article 6 cases? When will the Court recognise an implied right in Article 6? How does the Court assess Article 6 infringements, and when will the public interest justify an infringement?
The book’s case-law-driven approach allows Goss to demonstrate that the European Court’s criminal fair trial rights jurisprudence is marked by considerable uncertainty, inconsistency, and incoherence.
Ryan Goss is Lecturer in Law at the Australian National University, Canberra, and was formerly Junior Research Fellow in Law at Lincoln College, Oxford.
Sept 2016 | 9781509909865 | 254pp | Pbk | RSP: £29.99
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Law in Transition
Human Rights, Development and Transitional Justice
Edited by Ruth Buchanan and Peer Zumbansen
Law has become the vehicle by which countries in the ‘developing world’, including post-conflict states or states undergoing constitutional transformation, must steer the course of social and economic, legal and political change. Legal mechanisms, in particular, the instruments as well as concepts of human rights, play an increasingly central role in the discourses and practices of both development and transitional justice. These developments can be seen as part of a tendency towards convergence within the wider set of discourses and practices in global governance. While this process of convergence of formerly distinct normative and conceptual fields of theory and practice has been both celebrated and critiqued at the level of theory, the present collection provides, through a series of studies drawn from a variety of contexts in which human rights advocacy and transitional justice initiatives are colliding with development projects, programmes and objectives, a more nuanced and critical account of contemporary developments. The book includes essays by many of the leading experts writing at the intersection of development, rights and transitional justice studies. Notwithstanding the theoretical and practical challenges presented by the complex interaction of these fields, the premise of the book is that it is only through engagement and dialogue among hitherto distinct fields of scholarship and practice that a better understanding of the institutional and normative issues arising in contemporary law and development and transitional justice contexts will be possible.
The book is designed for research and teaching at both undergraduate and graduate levels.
Ruth Buchanan is a Professor of Law at Osgoode Hall Law School, Toronto.
Peer Zumbansen is Professor of Law and Canada Research Chair at Osgoode Hall Law School, Toronto.
Sept 2016 | 9781509907380 | 372pp | Pbk | RSP: £30
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Comparative Judicial Engagement
Edited by Liora Lazarus, Christopher McCrudden and Nigel Bowles
This book is about judicial reasoning in human rights cases. The aim is to explore the question: how is it that notionally universal norms are reasoned by courts in such significantly different ways? What is the shape of this reasoning; which techniques are common across the transnational jurisprudence; and which are particular?
The book, comprising contributions by a team of world-leading human rights scholars, moves beyond simply addressing the institutional questions concerning courts and human rights, which often dominate discussions of this kind, seeking instead a deeper examination of the similarities and divergence of reasonings by different courts when addressing comparable human rights questions. These differences, while partly influenced by institutional concerns, cannot be attributed to them alone. This book explores the diverse and rich underlying spectrum of human rights reasoning, as a distinctive and particular form of legal reasoning, evident in the case studies across the selected jurisdictions.
Liora Lazarus is a Fellow in Law and University Lecturer in Law at St Anne’s College, University of Oxford.
Christopher McCrudden FBA is Professor of Equality and Human Rights Law, Queen’s University Belfast; William W Cook Global Professor of Law at University of Michigan Law School; and a member of Blackstone Chambers.
Nigel Bowles is Director of the Rothermere American Institute at the University of Oxford.
Sept 2016 | 9781509908431 | 392pp | Pbk | RSP: £32.99
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