Congrès Mondial des Études sur le Moyen-Orient et l'Afrique du Nord

Barcelone du 19 au 24 Juillet 2010

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Human Rights Studies: Legal and Political dimensions (161) - NOT_DEFINED activity_field_Panel
 

· NOT_DEFINED language: English

· NOT_DEFINED description: Chair: Mustapha K. Al-sayyid, Cairo University

Paper Presenter: Ibrahim Aljazy (Assistant Professor, International Law, University of Jordan), “Arab Charter on Human Rights: Prospects after Ratification”
Following World War II, the Allies committed themselves to denouncing the use of military force as a viable solution to world problems. This commitment resulted in an agreement between the then world super powers to draft and proclaim the United Nations Charter (UNC), which was devised to solve such problems by peaceful means. Soon after the UN Charter was adopted, the United Nations General Assembly proclaimed and adopted the Universal Declaration of Human Rights (UDHR). The Declaration was a victory for all humanity because it laid down the basic principles that would ensure that human rights are promoted and protected universally. Following the adoption of UDHR, the United Nations Commission on Human Rights drafted the remainder of the International Bill of Rights; the International Covenant on Civil and Political Rights ( ICCPR). The International covenant on Economic, Social, and Cultural Rights (ICESCR); and the Optional Protocol to the Civil and Political Covenant. One early focus of the UN emphasizes self- determination through the elimination of colonial domination of the Third World. Most nations that have won independence since the formation of the UN include constitutional human rights guarantees in consistence with the UDHR. However , despite these remarkable advances in the area of human rights worldwide, the Arab governments found it difficult to implement the world's universally accepted standards within their own countries. The aim of this article is to examine the Arab Attempts to draft a regional convention for human rights. This will include studying the Arab Charter on Human Rights and its proposed enforcement mechanism.

Paper Presenter: Dr. Michelle Leanne Burgis (Lecturer, School of International Relations, University of St. Andrews) “Listening for Silences in the Courtroom: Law, Language and the Politics of Denial in Israeli Supreme Court Jurisprudence”
The enduring conflict between Israelis and Palestinians is one fundamentally structured by law and particularly, public international law. Far from taking place in a zone free from law, we can instead characterise the conflict in a space that is exceptionally legalized. Players on both sides seek to enlist the weapon of law at every turn to construct particular narratives and convince publics of their cause around the world. We have seen this recently in the contested legitimacy of the UN Human Rights Council’s Goldstone Report on Israeli and Palestinian conduct during Operation Cast Lead in late 2008 and early 2009. The fact that law can be used for sometimes diametrically opposed arguments indicates that its linguistic and doctrinal boundaries are hard to determine. Being a discourse able to encapsulate a myriad of competing claims, law must be understood as a tool that is both separate from and yet fundamentally implicated in political actions and words. Thus, court cases testing the legality of the route of Israel’s “security’s fence”, its policy of “targeted” killings or the status of the Gaza Strip present an arena not simply about competing approaches to law, but about competing constructions of law and language. How are claims couched? And what are some implications of the particular idioms used? Through a close reading of some of the Israeli Supreme Court’s jurisprudence touching on the (il)legality of Israel’s actions in the Occupied Palestinian Territories, this paper seeks to highlight how the Court relies on particular narratives and notions of security, humanity and community. The paper thus aims to present an overview of seminal Israeli jurisprudence dealing with the Arab-Israeli conflict so as to develop new ways of understanding not only the political and legal contours of the conflict, but of the role of legal language in its (de)construction.

Paper Presenter: Neva O. Ozturk (Research Assistant - Ph.D student, Ankara University Faculty of Law), "Towards a Turkish Legal Framework on Regulating Forced Migration"
Turkey is a transcontinental country that has always served as a gateway between the west and east. Thousands of people migrate to Turkey each year seeking refugee status. However, since Turkey has a ‘geographical reservation’ to the 1951 Refugee Convention Relating to the Status of Refugees, it grants refugee status only to people originating from European countries. This results in quashing the claims of asylum seekers from non-European countries that actually constitute the vast majority of applicants. This is deeply unfortunate for applicants who do have justifiable grounds to be granted refugee status, but happen to be attached to a ‘wrong’ type of country. On the other hand, Turkey would experience a significant flow of refugees if it lifts the reservation clause and this could potentially result in a major impact on its economy and society. From a human rights standpoint, Turkey has been subject to cases before the European Court of Human Rights where it has been alleged that Turkey violated, inter alia, Article 3 of the European Convention on Human Rights. Without a developed asylum policy and regulatory system, it would not be possible to have an established approach to the rule of law. Moreover, Turkey does not have a structured legal basis for Forced Migration issues. Although there is a by-law dated 1994 that attempts to address the status of forced migrants, it is ambiguous and does not clearly set the necessary legal framework. In addition, Turkey is expected to harmonize its regulations regarding refugees and asylum seekers pursuant to the EU acquits by 2012 and it is expected for the reservation status to be lifted. This development could seriously impact the inflow of forced migrants to Turkey. In 2001, the Turkish government signed the Accession Partnership Document and by further revising it on 19 May 2003, it initiated a national action plan where legal reform of asylum and lifting of the geographical reservation on the 1951 Convention is currently being discussed. This paper will focus on the current legal picture in Turkey in regards to refugee protection and then will further demonstrate the need of structuring a solid legal framework in light of the national action plan of Turkey for refugee / asylum seeker protection.

Paper Presenter: Andrea Karlsson and Vanja Mosbach (PhD-Candidates, Lund University), “Israel and Turkey in Human Rights Studies - Representation, Conflict and National Narrative”
Israel and Turkey are often described as “democratic exceptions” in the Middle East. However, both states have longstanding conflicts with different groups, often referred to as ethnic, the Palestinians and Kurds respectively, conflicts that from the start of nation building have been challenging and at the same time nurturing the legitimacy of the state. Another common denominator is the concept of genocide, which in different ways fundamentally informs the international as well as the domestic perception of both states. The holocaust stands as one of the foundational elements in the narration of the Jewish state, whereas the debate around the so-called Armenian genocide remains an issue that the Kemalist power structures refuse to incorporate in their own narrative, which continues to taunt the image of democratizing Turkey. These historical traumas have in various ways shaped the perceptions of the moral and political legitimacy of both states which continues to affect human rights discourse about Israel and Turkey. Human Rights Studies is an expanding academic field encompassing an increasing number of disciplines in order to analyze human rights discourse and practices from a variety of interrelated aspects. In the past years increasing academic attention has been directed towards the common features of Israeli and Turkish state policies. Comparative studies within a human rights framework on the conflicts however is lacking. Our paper seeks to map out the differences in the portrayals of Israel and Turkey in human rights literature, especially in general textbooks in human rights studies, regarding the political and ethnic conflicts the states of Israel and Turkey are immersed in. The discussion and analyses of this study revolves around the following questions: How do the conceptual frameworks differ within which the two conflicts respectively are analyzed? In what way are current human rights issues in Israel and Turkey incorporated into the historical national narratives and how does this affect the framing of the human rights issues at hand?

Paper Presenter: Necla Ozturk (Asst. Prof. Dr., Akdeniz University School of Law), “Deportation Under Turkish Law”
Deportation primarily leads to exclusion of aliens against their will, deportation of aliens is a legal right which is granted to countries by International Law and structured within statute for purposes of enforcement. However, countries are bound by mutual or multilateral conventions they have ratified, which is not abuse of jurisdiction. Besides, all the treaties regularizing deportation, certain principles and fundamentals are consistently present. In this survey, we will principally analyze how Deportation Act and its application or methodology will work under Turkish law, mainly in terms of constitutional and national legislations. Also per certain international conventions which Turkey has ratified and intend to enforce through local laws, within the frame of Constitution. The question of abstract principles, whether in treaties or in municipal law regulations regarding deportation needs to be analyzed in thoroughly. In international conventions and treaties or municipal law reasons to deport usually are; conduct that is contrary to public interest, public policy or unethical violation of substantive provisions of law. In Turkish municipal law regulations such as; homeland security, conduct contrary to political and governmental standing is a major ground for deportation. In cases where legislation endorses such abstract principles, the duty to implement the legislation within the framework and objectives of law is on the executives. The enforcement practiced in Turkey is particularly important since aliens in Turkey can be deported by administrative discretion without judicial an order, also administration has extensive judicial discretion regarding deportation. Here, the drawbacks created by this comprehensive judicial discretion will be analyzed by looking into exemplary judicial writ and the risks it created on restriction of fundamental rights and freedom, which will be dealt with elaborately.

Paper Presenter: Ekrem Karakoc (Ph.D. Candidate, Pennsylvania State University), “Democracy and the Inequality Paradox: How Democracy Has Increased Income Disparities in Post-Communist and Southern Europe”
Despite the theoretical expectation that democracy will reduce, income inequality does not show any remarkable decrease in new democracies following transition. Most of new democracies have maintained their inequality levels or shown increases over time. This study argues that inequality persists for three reasons; the low participation rate by the poor, the pre-existing link between political parties and organized interests and volatility in political party system. In order to test the theory, this study relies on a multi-method approach, employing large-N statistical analysis and comparative case study on newly democratized countries; Poland, Czech Republic, Spain and Turkey. The findings find strong support for the theory and also show that turnout moderates the effect of volatility on targeted spending.

Paper presenter: Mustapha Kamel Al-Sayyid (Cairo University), “Rule of Law, ideology and human rights in Egyptian courts”
What does rule of law imply for human rights. Advocates of Liberalism would argue that the best guarantee for human rights is when the rule of law prevails in any country, and its government becomes a government of law not of men. Thus, whenever a dispute arises and its parties resort to a court, the judge who applies the law, would definitely rule according to the law in such a way as to ensure respect for human rights. This conception of the rule of law implies two conditions, one that the substance of laws in that particular country is completely compatible with the most acceptable definition, of human rights, is presumably implied in the international bill of human rights and that the judges are independent in their function , namely not subject to any pressures, particularly from the executive authority. Would the rule of law in this sense be not only a necessary , but also a sufficient condition for respect of human rights.
This paper argues that even in this case, rule of law would not be sufficient for effective respect for human rights. The judge, or the judges acting independently, could interpret the provisions of the law in such a way as to give effect to violations of human rights. Only one school of thought, namely the Legalist School, would claim that the judge is influenced only by the provision of the law which leave him very little room to make a personal judgment. This school has its own advocates, but it has its critics who would argue to the contrary that the judge is not only influenced by the letter of the law but is also influenced by his position within the judicial structure, as well as his personal characteristics.. Of those critics of the Legalist School, Richard A Posner has advanced no less than eight other theories which elaborate on the considerations which would move judges away from a textualist –originalist interpretation of the law in any particular case. These eight theories refer to political, economic, sociological, psychological, organizational, strategic, pragmatic and attitudinal considerations as possible explanations of judicial behavior. Ideological influences are implied in the discussions of political and attitudinal variables that could impact judicial decisions..
This paper argues that Egyptian judges, even when acting in complete independence from the government and basing their decisions on the same legal provisions, are likely to come up with contradictory rulings that could have opposed implications for respect of human rights. Their interpretations of the same laws could lead them in some cases to expand and reinforce citizens’ exercise of civil and human rights, and in other cases to the exact opposite mainly severely restricting the enjoyment of such rights.