Category: ‘human rights’

Indigenous Australians may soon lose ancestral land

1 October 2015 Posted by Wibo van Rossum

Every year in my Antrhopology of Law course at Erasmus Law School, a large part of my teaching is devoted to Australian Aboriginals and their concept of law. 

This post, on Al Jazeera, shows again how the Australian government is blind to alternatives to their types of interventions, and crushes indigenous communities. The idea of ‘one law for all’ leads to devastating consequences for some.

Part of the article:

“Since its closure, most of the children who lived there have not returned to school, and youth suicides – cited by the government as a reason to close the town – have increased.

A 2011 Amnesty report found that the mortality rate for Aboriginal people living in urban areas was far higher than those living on ancestral lands. Some of Oombulgurri’s former residents are now homeless.

While the future of Western Australia’s indigenous communities remains uncertain, Aboriginal community organisers say the closure of these communities will bring social chaos and looking back on past policies, this plan could augur yet another lost generation of indigenous Australians.”

For the whole article: http://www.aljazeera.com/indepth/inpictures/2015/09/indigenous-australians-lose-ancestral-land-150904105812729.html

Racism in the Netherlands – debate

19 August 2015 Posted by Wibo van Rossum

It is almost like the Dutch government these days (18 & 19 August) is sitting ‘in the dock’ in court, as one newspaper put it (NRC). The Dutch section of the International Commission of Jurists with many other NGO’s and the UN Commission for human rights/Committee on the Elimination of Racial Discrimination concluded that the Netherlands does not do enough to combat racism. The government apparently is of the opinion that it does enough. ‘Discrimination namely is illegal. The law says so. There is no political party with a racist programme. And no politician was ever criminally convicted for racism.’ Some say the discussion ‘will only feed the anti-racism activists and the ‘asylum-industry’ with new arguments’. Others are of the opinion that ethnic profiling by the police, the high levels of unemployment among ethnic minorities, and the negative atmosphere surrounding the discussion on Black Pete, are real problems that should be tackled.

I think it is always interesting how the law can be used to ward of accusations. ‘According to the law it is illegal, so what are you talking about?’ Everybody knows however that daily routine and practice is not a mirror of the law: in actual practice people do have stereotypes, do prefer to hire employees from one group over the other, do discriminate. If the law apparently is not able to combat that, the question is if the government is doing enough by just referring to the law.

Polemics and academics on human rights

15 December 2013 Posted by Wibo van Rossum

The political and media debate on human rights and the interference of ‘Strasbourg’ (the European Court of Human Rights) with national politics and law, that raged two years ago and that died down somewhat, has returned to the Netherlands these days. Probably because of the 65 year anniversary of the UDHR of the UN. Anyway, the University of Leiden Law School in the name of Bastiaan Rijpkema more or less repeated its ‘anti’ sentiment by stating in a newspaper article ‘Please, not even more human rights’. Rijpkema argues that the human rights movement shows disdain for democracy. ‘The right answer to political questions in contemporary society should be found in the human rights documents’, he reconstructs their way of reasoning. In stead human rights should focus on its core business, not on whether people should be allowed to have a satellite antenna on their rented house, or whether people living in the Heathrow area have a fundamental right not to be disturbed by airplane noise at night.

Max Pam argues polemically that human rights have proliferated enormously, and that they have become a bunch of contradictory ideals and recommendations with which all states – be they Saudi Arabia or the UK – can do what they like. They give no guidance anymore.

On the other hand there is people like Marie-Benedicte Dembour who argues that human rights are obsolete – not to argue that they should be abolished, but that they should be even more extended to make a defence of the welfare state possible. Law=politics, and judges should be activists. ‘More Strasbourg!’ because ‘politics are highjacked by capitalism and the large media concerns’.

Latest contribution is by political commentator Martin Sommer on the ‘National Plan of Action Human Rights’ that was presented by Amnesty International last Tuesday. He observes a kongsi of human rights activists that ‘cite each other in order to conclude that the Netherlands does not live up to human rights standards’. He cites the debate on the subsiding of houses in the province of Groningen due to gas winning. ‘Should people really need to argue in terms of the right not to live in fear when a case can be filed under tort??!’ His real addition to the debate however lies elsewhere: the human rights activists and believers never talk about solving contradictory rights, and never talk about who will pay for all this. In politics you not only have to deal with contradictory rights and how to balance them, but the balance also includes a budget.

Dutch worries on gay asylum seekers

11 December 2013 Posted by Wibo van Rossum

Do gays in legal terminology form a ‘group’ that need to fear ‘being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’? The Netherlands has several gay asylum seekers that say they do and three of them (from Sierra Leone, Uganda and Senegal) convinced the Dutch Council of State to ask the European Court of Justice (of the EU) in a preliminary judgment what to think of this. In November the Court ruled that a. “the existence of criminal laws (…) which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group”, b. “that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution”, and c. “When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.” (See the Court judgment here.)

In other words, when it comes to asylum there is no fundamental distinction between homosexuality, religious conviction, and political conviction. Since one should not ask a political activist to ‘back down a bit’ or a believer in God to just do his prayers at night and behind closed doors, one should also not ask a homosexual to behave in public as if s/he is straight.

The decision of the Court did stir up some discussion on how many gay Muslims we may expect in the future …. and whether it is ethical to ask an asylum seeker to convince the Dutch judge that he really is gay …

Vids of the Religare seminar

10 October 2012 Posted by Wibo van Rossum

Via this link you can watch the video’s recorded at the Religare Expert seminar on Unregistered Marriages and Alternative Dispute Resolution in European Legal Systems, held on 4 September 2012 in London. You can see the programme and then select the sessions and speakers you would like to hear.

Victory for the equality principle!

20 July 2012 Posted by Wibo van Rossum

The application at the European Court of Human RIghts of the SGP, the orthodox protestant political party that bans women form formal positions in the party on biblical grounds, was declared inadmissible. In 2010 the Supreme Court of the Netherlands ruled that the equality principle was more important than the freedom of religion, and that the ban  on women was thus contrary to law. The deal with the Dutch state was to ‘do nothing’ until the European Court had given a final verdict. And now we have it! In the last paragraphs the Court says:

“76. The issue in the present case is the applicant party’s position, restated in the present proceedings before the Court, that women should not be allowed to stand for elected office in general representative bodies of the State on its own lists of candidates. It makes little difference whether or not the denial of a fundamental political right based solely on gender is stated explicitly in the applicant party’s bye-laws or in any other of the applicant party’s internal documents, given that it is publicly espoused and followed in practice.

77. The Supreme Court, in paragraphs 4.5.1 to 4.5.5 of its judgment, concluded from Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women and from Articles 2 and 25 of the International Covenant on Civil and Political Rights taken together that the SGP’s position is unacceptable regardless of the deeply-held religious conviction on which it is based (see paragraph 49 above). For its part, and having regard to the Preamble to the Convention and the case-law cited in paragraphs 70, 71 and 72 above, the Court takes the view that in terms of the Convention the same conclusion flows naturally from Article 3 of Protocol No. 1 taken together with Article 14.
78. That said, the Court must refrain from stating any view as to what, if anything, the respondent Government should do to put a stop to the present situation. The Court cannot dictate action in a decision on admissibility; it is, in any case, an issue well outside the scope of the present application.
79. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously
Declares the application inadmissible.”

So hurray for the equality principle! But ‘not so hurray’ for the freedom of religion of a really tiny minority group. And not so hurray either for the tolerance of diversity.

On ‘gedogen’ of illegal students

27 June 2012 Posted by Wibo van Rossum

In May a Dutch judge decided that illegal students, for example asylum seekers who were turned down but still stay in the Netherlands, have a right to do an internship if that is part of the study requirements. The right to education comes first, the judge said, and an internship does not count as ‘work’. Minister Leers of integration this week announced that he will fight the decision on appeal. This means that legally internship still counts as work, and thus companies and organizations with illegal internship students have to pay a fine.

The announcement of Leers led to heated debate in Parliament of pros and cons of seeing an internship as work or as part of education. The solution, typically Dutch and typically politics, is to postpone the decision to change the law until after elections in September. In the mean time, the ‘gedogen’ construction is taken out of the Dutch cupboard. ‘Gedogen’ means that an illegal situation will not be prosecuted. Leers agreed to instruct the Labour Inspection to look the other way when illegal students are spotted.

In the mean time, some schools and universities have always defied legal rules on this point. They took the risk of being fined. And besides that there was the ‘Naughty Fund’ that collected money to pay the fines of institutions and illegals. Some interesting resistance … 😉

Check: there are only about 150 Burqa wearers in NL

10 March 2012 Posted by Wibo van Rossum

NRC Next, the popular quick to read version of national newspaper NRC, everyday has a ‘check’ whether a popular statement or thought is true or not. Today, it was the long resonating figure of ‘there are probably only about 150 burqa wearers in the Netherlands’ – with the implicit assumption ‘why should we bother and make a law about it’? Anyway, according to Annelies Moors, professor in Islamic studies at the University of Amsterdam, the number of women in NL who wear a burqa covering the eyes is about zero. There are probably about a 100 full time niqaab wearers (leaving a slit for the eyes), and about 400 part time wearers.

Based on these figures and estimates, NRC Next states that the popular statement is largely true.

BTW a law that prohibits covering of the face in public is underway …

Seminar ‘Framing multicultural issues in terms of human rights: solution or problem?’

12 November 2011 Posted by Wibo van Rossum

On Monday 14 November me and Titia Loenen organized a one day seminar on ‘Framing …’ in Utrecht.

Building further on our special issue of the Utrecht Law Review of June 2010 called ‘Human rights law as a site of struggle over multicultural conflicts; Comparative and multidisciplinary perspectives’, we at Legal Theory in Utrecht felt the need to address the question which role human rights play in framing specific multicultural issues. Take for example the refusal to shake hands with the other sex. This ‘problem’ can easily be resolved, as often happens, in an informal and pragmatic manner. It can however also be framed in terms of ‘reasonable behaviour of an employee’, but just as well, it seems, in terms of a ‘horizontal working of human rights’: ‘freedom of speech/expression’ or ‘freedom of religion’ vs ‘non discrimination’ and ‘gender equality’.

We want to investigate whether it makes a difference (for whom, in what sense?) to frame an issue one way or the other, and what the role is that the (human rights) law itself plays. Do human rights, especially the ready availability of for example ‘freedom of religion’ these days, steer towards and thus influence certain solutions? If so, what are the consequences in terms of ‘backfire’ for the human rights system and for social relations (both on micro and macro level)? What are the gains, and for whom? And not the least interesting: what does a comparison between countries teach us? These questions partly need to be addressed empirically, like whether framing multicultural issues in terms of human rights is a recent phenomenon and whether shifts in the use of specific human rights can be discerned.

The programme may be found at www.uu.nl/rth.

Human rights in the Netherlands

17 March 2009 Posted by Wibo van Rossum

The Council of Europe has published a critical report on the human rights situation in the Netherlands. The report criticises policy on migrants and asylum seekers, for example that no separate shower facilities are available for men and women, that young asylum seekers are not properly informed of the legal proceedings in their cases, and that children at the low age of 12 years are subject to adult criminal law.

The commissioner also said there were serious concerns about “racist and intolerant tendencies” in the Netherlands. He called for careful use of language in the debate on integration. See NRC International and the reportCommDH_2009_2_Eof Commissioner Hammarberg.

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