Effective judicial protection at the national level: the current utopia of procedural hurdles

Preprint of an article by Dr Helen Xanthaki, Senior Lecturer in Legislative Studies and Academic Director, Sir William Dale Centre for Legislative Studies at the Institute of Advanced Legal Studies, published in European Journal of Law Reform

'Indigenous Rights at the United Nations: Their impact on international human rights standards'

This paper goes beyond the obvious impact that the Declaration has had on the rights of indigenous peoples and argues in favour of its wider impact on the standards of international human rights law. It sets out to prove that potentially, the recognition of indigenous rights in UNDRIP can make a substantial difference to other groups, as it pushes forward the standards of current international law. In order to highlight the ‘added value’ of the Declaration, the paper juxtaposes such contribution with respect to the previous contours of international law in five areas of human rights: the right to self-determination, collective rights, cultural rights, land rights and participation and consultation rights

Land rights of indigenous peoples in Southeast Asia

Very little has been written on indigenous rights in South-East Asia. This article attempts to address issues concerning indigenous land rights in the region, arguing that there is a clear gap between the existing situation and the relevant standards of the international human rights system. After a short overview of the international human rights framework currently binding South-East Asian states, the article analyses issues of indigenous land ownership and control by indigenous peoples over matters affecting their land rights. The article then discusses traditional economic activities, natural resources, indigenous environmental management and finally to issues of relocation and compensation. In each of the aforementioned areas, indigenous land rights are generally non-existent or very weak. Even on occasions when national legislation has recognised strong indigenous land rights, the lack of political motivation to properly enforce these rights impedes their full realisation. The article demonstrates that this inadequacy is inconsistent with international standards on the prohibition of discrimination, protection of minority cultures and more specifically on indigenous land rights, as are recognised in international instruments, interpreted by international bodies and transferred into national practices

Multiculturalism and international law: Discussing universal standards

This is the post-print version of the article. Copyright @ John Hopkins University PressThis article aims to assess the contribution of current international human rights law to the multicultural debate. The article argues that although international law has not engaged in a sustained way with the concept, the basic elements of multiculturalism are in fact promoted by current standards. Among these discussed are the recognition of cultural attachments in the public sphere, the need for interaction among cultures, and the understanding of sub-national groups as equal partners in the evolution of the society. A closer look at the standards and their dynamic interpretation by UN bodies also reveals helpful answers to difficult challenges currently posed by multiculturalism, including extremism and clashes between cultural practices and other human rights

Misconceptions on legislative quality: an enlightened approach to the drafting of legislation

The chapter summarises traditional teachings in legislative drafting, and identifies five misconceptions. Misconception 1: drafting conventions always lead to quality. But the phronetic nature of drafting prevents nomoteleia of drafting conventions. Misconception 2: Legislative quality rests in a vacuum. But the interconnectivity between policy, law, and legislative expression render their interdependence profound and critical. Misconception 3: legislative quality is undefinable. But effectiveness is a prominent definition of legislative quality. Misconception 4: effectiveness always leads to legislative quality. But legislation suffers from inherent limits: its interconnection and reliance to regulation, the limits of legislation as written communication, and the intrinsic aversion of users to legislative texts. Misconception 5: in view of the unsurpassable limits of legislative texts, legislative quality should not be pursued further. But there is hope ahead, such as the layered structure of legislative texts, the use of image in legislative texts, and the restructuring of the statute book as a whole

Cultural rights in the case-law of the International Court of Justice (ICJ)

One of the most remarkable developments of the new millennium has been the expansion of debates on culture at the highest levels of the international community’s decision-making processes. This development has necessarily had an impact on cultural rights empowerment, including enhancing their justiciability. Substantial progress has been made both at a regional and international level. Yet, not all thresholds have been reached. The International Court of Justice (‘ICJ’) has never explicitly addressed cultural rights in its case-law. Despite its ‘multicultural’ composition, it is only with great difficulty that the Court examines questions related to culture. However, a thorough examination of the jurisprudence of the ICJ reveals that opportunities to take cultural rights seriously have arisen more than once. Recent judgments of the Court reveal the emergence of a certain trend calling for a ‘culturally sensitive’ understanding of legal issues brought to the Hague. The present paper submits that this trend is beneficial not only for the protection of cultural rights, but also for the maintenance of human and cultural diversity, as well as for the survival and livelihood of indigenous peoples. In light of the urgent worldwide need for peace, addressing culture as a legal issue before the ICJ, in accordance with articles 36 and 60 of its statute, may be a fruitful pathway for the Court to follow in order to resolve international disputes

The Kessler case should be a starting point for reforming the EU’s anti-fraud office

Giovanni Kessler, the Director-General of the European Anti-Fraud Office (OLAF), has faced allegations that he listened in on telephone conversations as part of a previous OLAF investigation. Helen Xanthaki argues that the case should act as motivation for EU authorities to reassess the structure of OLAF and its role in preventing fraud at the European level