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Freedom of Expression, Belief, and Assembly

Brice Dickson

in The European Convention on Human Rights and the Conflict in Northern Ireland

The law relating to the freedoms protected by Articles 9 to 11 of the European Convention — freedom of speech, belief, assembly, and association — has in Northern Ireland always been similar to that ... More

The law relating to the freedoms protected by Articles 9 to 11 of the European Convention — freedom of speech, belief, assembly, and association — has in Northern Ireland always been similar to that applying in England and Wales. During the years of conflict it has been a key element in a number of important controversies. This chapter looks in turn at broadcasting bans, freedom of expression during electoral and parliamentary processes, freedom of belief claims such as those put forward by people seeking to join the police, and the freedom to march, together with a miscellany of other relatively minor issues. Until 2000, of course, the European Convention was not part of the domestic law of any part of the United Kingdom (nor of Ireland until 2004), so persons or organizations with grievances about their right to freedom of speech, belief, and assembly had to take their complaints to Strasbourg if they wanted Convention standards to be directly applied. This happened rarely, and when it did, applicants tended to discover that this was yet another field in which the enforcement organs of the Convention system were quite content to confer a wide margin of appreciation on States.Less

“A Borrowed Suit”: Peers Accept the Inevitable

Ray A. Moore and Donald L. Robinson

in Partners for Democracy: Crafting the New Japanese State Under MacArthur

On August 31, a “special committee,” consisting of 45 members of the House of Peers, began a series of secret meetings that would last until October 3. Attention focused again on the emperor's role ... More

On August 31, a “special committee,” consisting of 45 members of the House of Peers, began a series of secret meetings that would last until October 3. Attention focused again on the emperor's role (kokutai), popular sovereignty, and the proposed electoral review of judges. Peers also criticized the American‐sounding rhetoric of the preamble and the notion in Chapter X of the constitution as “supreme law.” Notable during these debates were exchanges between Takayanagi Kenzō and Sasaki Sōichi. In the end, after making a few minor amendments, the House of Peers added its approval of the revision.Less

“Fervent Hopes”: Pacifism and Human Rights

Ray A. Moore and Donald L. Robinson

in Partners for Democracy: Crafting the New Japanese State Under MacArthur

Recounts the intense debate in the revision committee over Article 9, renouncing war and armed forces, and the contents of the bill of rights (Chapter III). The chapter reveals sharp quarrels between ... More

Recounts the intense debate in the revision committee over Article 9, renouncing war and armed forces, and the contents of the bill of rights (Chapter III). The chapter reveals sharp quarrels between Chairman Ashida Hitoshi and representatives of the left about viewing the Weimar Constitution as a model for Japan's new democracy. It sets forth the debate over human rights: what would be the status of religion under the new constitutional structure? Would Japan's traditional family structure survive in the new emphasis on the rights of individuals? A notable speech by a newly elected female member, Katō Shizue, and rejoinders by Kimura Tokutarō and Tanaka Kōtarō, ministers of justice and education, respectively, explored these questions.Less

“Last Service to the Fatherland”: The House of Peers Addresses Constitutional Revision

Ray A. Moore and Donald L. Robinson

in Partners for Democracy: Crafting the New Japanese State Under MacArthur

Having passed the lower house, the proposed revision came next before the House of Peers. The aristocratic upper house would exist no longer under the new constitution, yet its approval was critical ... More

Having passed the lower house, the proposed revision came next before the House of Peers. The aristocratic upper house would exist no longer under the new constitution, yet its approval was critical to the project's legitimacy. Ch. 19 tells how the proposed revision came under severe attack by peers, but was also stoutly defended. The principal defenders, besides Kanamori, were a highly respected lawyer, Takayanagi Kenzō, and Nanbara Shigeru, president of the University of Tokyo; the scholarly Sasaki Sōichi and a fierce and eloquent peer, Sawada Ushimaro, led the critics. Again the role of the emperor under the new charter (kokutai) was an object of earnest interest, as was Article 9 and the bill of rights.Less

Limitations on Manifestations of Religion or Belief

Carolyn Evans

in Freedom of Religion under the European Convention on Human Rights

This chapter examines State implementation of Article 9(2) to balance out competing interests between individual freedom to manifest a religion or belief and the legitimate interests of the State in ... More

This chapter examines State implementation of Article 9(2) to balance out competing interests between individual freedom to manifest a religion or belief and the legitimate interests of the State in ensuring that such manifestations are restricted from unduly interfering in public health and order, morality, and the rights and freedoms of others. The Court and Commission give wide leeway for State activity in justifying whether restrictions on the manifestation of religion or belief are necessary. Although the Court and Commission are tasked to secure State action on manifesting religion or belief, not many cases are passed on to Article 9(2) because they paid little attention to issues concerning Article9(1), either bypassing the article with little explanation for breach or completely ignoring the issues. Limited scope is given to Article 9(1).Less

Neutral and Generally Applicable Laws

Carolyn Evans

in Freedom of Religion under the European Convention on Human Rights

This chapter discusses the issue of breaching the compromise between legislation and certain religious groups through enforcing certain laws conflicting with certain religious cultures, which appears ... More

This chapter discusses the issue of breaching the compromise between legislation and certain religious groups through enforcing certain laws conflicting with certain religious cultures, which appears to pass on certain religious issues or to discriminate against certain religious groups. Some of the laws are genuinely neutral regarding religion and general in application, but for some religions or religious groups, complying with these laws would require behaving contrary to their religion or belief. This is potentially divisive to increasingly pluralistic European societies. Thus, there have been suggestions of exemptions from these laws. The Court and Commission present three basic responses: as long as the law is genuinely neutral and general, it does not breach Article 9; restricting religious freedom under these laws could breach Article 9(1), but can be justified in Article 9(2); and lastly, these issues are dealt with in specific reference to another article of the Convention.Less

The Right to Manifest a Religion or Belief

Carolyn Evans

in Freedom of Religion under the European Convention on Human Rights

This chapter concentrates on the application of the right to manifest freedom of religion or belief — an essential protection for freedom of religion or belief stipulated in Article 9(1) under the ... More

This chapter concentrates on the application of the right to manifest freedom of religion or belief — an essential protection for freedom of religion or belief stipulated in Article 9(1) under the Convention. It describes the difficulty of demonstration of the right caused by restrictions, not only from State interference, relatively narrow definition of terms, and numerous possible interpretations of the manifestation, but also from Court and Commission management. The approach of the Court and Commission to manifestation of religious rights offers limited scope and protection, especially to minorities and individual believers, since their performance is supported by insufficient reference to what is necessary to religion or belief, and since their approach is analogous to the tradition of Christian beliefs, a dominantly recognized religion.Less

Conclusion

Carolyn Evans

in Freedom of Religion under the European Convention on Human Rights

This chapter sums up the issues regarding the fundamental human right of freedom of religion or belief and the analysis regarding the drafting, implementation, interpretation, and other aspects of ... More

This chapter sums up the issues regarding the fundamental human right of freedom of religion or belief and the analysis regarding the drafting, implementation, interpretation, and other aspects of the laws that are meant to protect the right to manifest religion or belief. Investigation of Article 9 and its cases reveals a confusing establishment of the principle law that restricts the movement of both governing parties and society. The lack of knowledge and understanding about the intended definition of religion and belief limits the overall legal implementation and effectiveness of Article 9 as perceived through the article's inconsistencies, gaps in evidence and objectivity, and lack of clarity; whereas the narrow scope of applicable religions, along with greater sympathy for the States, makes it difficult for applicants acting outside the traditional, European model of religious practice to make successful Article 9 claims.Less

Religious Freedom and the Individual

Norman Doe

in Law and Religion in Europe: A Comparative Introduction

This chapter explores religious freedom, particularly from the perspective of individuals. It covers religious freedom in the constitutions of European States, as well as concessions and exemptions ... More

This chapter explores religious freedom, particularly from the perspective of individuals. It covers religious freedom in the constitutions of European States, as well as concessions and exemptions enjoyed by individuals from laws of general applicability at the sub-constitutional level (that is, at the level of laws created by States under the authority of national constitutions). It evaluates the impact of Article 9 of the European Convention on Human Rights at the national level (including Strasbourg jurisprudence), and proposes that key elements of Article 9 are already to be found in pre-existing national laws on religion in terms of both the right to religious freedom and the limits which States may place on its exercise.Less

Historical Background

Carolyn Evans

in Freedom of Religion under the European Convention on Human Rights

This chapter explains the history and development of the Convention through the drafting of the history of the Universal Declaration of Human Rights to explain the intended interpretation of Article ... More

This chapter explains the history and development of the Convention through the drafting of the history of the Universal Declaration of Human Rights to explain the intended interpretation of Article 9. The intention of the Convention, based upon the work of the United Nations, is described as ‘securing the universal and effective recognition and observance of the rights’, but certain aspects, such as the protection of religious freedom, were controversial at the time and were particularly debated within the establishment, more so in the Universal Declaration. The travaux préparatories may be limited in discussing and understanding what the drafters intended to protect in Article 9, and also in Article 2 of the First Protocol, but several significant points are made regarding the right to freedom of religion.Less

Control of Territory and Human Rights Obligations of Armed Groups

Katharine Fortin

in The Accountability of Armed Groups under Human Rights Law

Chapter 9 considers the relevance of control of territory to the acquisition of legal obligations by armed groups. Employing the principle of ‘effectiveness’ as its starting point, the chapter ... More

Chapter 9 considers the relevance of control of territory to the acquisition of legal obligations by armed groups. Employing the principle of ‘effectiveness’ as its starting point, the chapter conducts a detailed analysis of the rules on State responsibility, focusing in particular on Article 9. It also charts jurisprudence from the US Supreme Court, the US-Mexico General Claims Commission, and the Franco-Italian Conciliation Commission. Finding support for the idea that States may be held responsible for the impersonal acts of armed groups, the chapter explains how this case law may give rise to an argument that armed groups are bound by the international obligations of the State in instances where they control territory. It concludes by explaining how the obligations of armed groups may also originate in the continued rights of the population in the territory under their control.Less

Armed Groups and Crimes against Humanity

Katharine Fortin

in The Accountability of Armed Groups under Human Rights Law

The chapter considers the relevance of the law on crimes against humanity to explanations of how armed groups are bound by international human rights law. Exploring the two-tiered nature of crimes ... More

The chapter considers the relevance of the law on crimes against humanity to explanations of how armed groups are bound by international human rights law. Exploring the two-tiered nature of crimes against humanity, it shows that responsibility for crimes against humanity exists at two levels: the level of the individual perpetrator (individual criminal responsibility) and the level of the entity behind the perpetrator (a civil responsibility). From this starting point, the chapter analyses what the case law on crimes against humanity can tell us about whether and when armed groups can commit crimes against humanity. The chapter ends by exploring the connection between crimes against humanity and human rights law in a normative sense, examining what a conclusion that armed groups can commit crimes against humanity demonstrates about their obligations under human rights law.Less

Towards a Theory of Freedom of Religion or Belief

Carolyn Evans

in Freedom of Religion under the European Convention on Human Rights

This chapter explores the theoretical rationale for religious freedom in modern European States, in various present cultures. As explained through Dworkin's concept, the conception of freedom of ... More

This chapter explores the theoretical rationale for religious freedom in modern European States, in various present cultures. As explained through Dworkin's concept, the conception of freedom of religion or belief is divergent among people, and it is adapted differently into practice, creating identities and a wide scope for justification and interpretation. There are different interpretations and applications of articles in various States, especially Article 9, which protects the freedom of religion and belief, since the Convention gives little guidance as to the explanation and reasoning behind its principle, resulting in inconsistencies, inequality, and unfairness in order to justify the right outcome for a particular factual situation. It would seem that the best approach for the Court to this complexity that emphasizes dignity and freedom in decision-making, in parallel to the ideals of the Convention, is through an argument from autonomy.Less

Who is the Citizen of the Union?

Stephen Weatherill

in Law and Values in the European Union

This chapter illustrates that each national of a Member State shall be a Citizen of the Union (Articles 9 TEU and 20(1) TFEU). Citizenship of a modern European State comes with a range of ... More

This chapter illustrates that each national of a Member State shall be a Citizen of the Union (Articles 9 TEU and 20(1) TFEU). Citizenship of a modern European State comes with a range of well-recognized rights and duties. All States have different detailed frameworks, but the idea of the individual citizen’s intimate connection with, and expected allegiance to, his or her State is missing at the EU level. Articles 9 TEU and 20(1) TFEU also provide that Union citizenship ‘shall be additional to and not replace national citizenship’. It is but a supplement; though on a more positive note, EU citizenship strengthens State citizenship with a set of entitlements and protection that extend beyond that which can be provided at the national level. The chapter aims to provide an understanding of the scope of protection granted by EU law, as well as its relationship with national law.Less

Cold War Defenders of Japan

Garren Mulloy

in Defenders of Japan: The Post-Imperial Armed Forces 1946-2016, A History

From the foundation of the Japan Self-Defense Forces in 1954, they gradually became the primary defenders of Japan’s external security, together with her US guarantor. This chapter examines the ... More

From the foundation of the Japan Self-Defense Forces in 1954, they gradually became the primary defenders of Japan’s external security, together with her US guarantor. This chapter examines the foundation of the three Forces, and the development of each in turn, from their origins, culture, and ethos, through growth and technical development, to how their respective and combined Cold War security roles changed. It also highlights their uneven capabilities and US engagement throughout the period, with naval cooperation prominently to the fore through the Maritime Self-Defense Force. While the Air Self-Defense Force gained technical prowess, it also demonstrated notable and embarrassing capability flaws, while the Ground Self-Defense Force struggled for public acceptance despite being the largest Force and the primary disaster relief provider, partly due to lingering imperial-era associations. Despite developing into sophisticated armed forces they struggled to shed the existential dilemma of being established seemingly in breach of Article 9 of the constitution and thereby struggled to gain social acceptance and legitimacy.Less

The New Conservative Mainstream and New Security Policies Under Prime Minister Shinzō Abe, 2012 to 2016

Andrew L. Oros

in Japan's Security Renaissance: New Policies and Politics for the Twenty-First Century

This chapter examines the return of Shinzo Abe to Prime Minister of Japan from 2012-2015, paying special attention to new security legislation and military capabilities developed in this period.

UNCLOS and the ‘Ambulatory Thesis’

Kate Purcell

in Geographical Change and the Law of the Sea

This chapter introduces David Caron’s influential argument that Articles 7(2) and 76(9) of UNCLOS ‘negatively imply’ that baselines and the zonal limits measured from them are, as a general rule, ... More

This chapter introduces David Caron’s influential argument that Articles 7(2) and 76(9) of UNCLOS ‘negatively imply’ that baselines and the zonal limits measured from them are, as a general rule, ambulatory. It points to two important differences between these provisions neglected by Caron’s analysis. It explains why it is necessary to revisit Articles 7(2) and 76(9) with a view to determining the ordinary meaning of their terms in context and in light of the treaty’s object and purpose—the project of the following two chapters. Caron’s argument is premised on a problematic interpretation of the relevant provisions and UNCLOS more broadly.Less

The Rise of Secured Credit

Sarah Paterson

in Corporate Reorganization Law and Forces of Change

This chapter explores the way in which the shifts in the fields of finance and non-financial corporates discussed in Chapters 3 and 4 have led to changes in US secured transactions law. It examines ... More

This chapter explores the way in which the shifts in the fields of finance and non-financial corporates discussed in Chapters 3 and 4 have led to changes in US secured transactions law. It examines the way in which these changes have, in turn, shifted bargaining power towards secured creditors when a debtor attempts to reorganize its debt and equity finance. However, the argument is made that this gives rise to different issues from the traditional concern for secured creditor liquidation bias when it is set in the wider organizational and institutional environment which the book has begun to examine. Turning to England, the chapter explores how the English courts have generally supported the allocation of control rights in distress to senior financial creditors. It reveals why this has, once again, made English corporate reorganization law particularly well adapted to the demands of the past decade.Less

Postwar Refractions: The United Nations and the New Japan

Jessamyn R. Abel

in The International Minimum: Creativity and Contradiction in Japan's Global Engagement, 1933-1964

The wartime persistence of internationalist thinking contributed to the quick acceptance in the immediate postwar years of the new United Nations, which in terms of its principles and ideals ... More

The wartime persistence of internationalist thinking contributed to the quick acceptance in the immediate postwar years of the new United Nations, which in terms of its principles and ideals represented not a sharp turn, but in many ways a continuation of ideas that educators and foreign policy experts and practitioners, even at the highest levels of government, had promoted throughout the war. Over the decade between the establishment of the UN and Japan’s accession, changes in domestic Japanese politics and views of the organization led to a division within the broad Japanese support for the organization between pro-American conservatives who favored remilitarization and close alliance with the United States within the context of UN membership and pacifists opposed to remilitarization and insisting on a posture of neutrality and independence from the U.S. But both sides aimed at world peace through cooperation with the international organization.Less