Tilburg Law Review-Journal of International and Comparative Law最新文献

{"title":"Legality of Human Rights Restrictions During the COVID-19 Pandemic Under the European Convention on Human Rights","authors":"Regina Valutytė, Danutė Jočienė, Rima Ažubalytė","doi":"10.5334/tilr.245","DOIUrl":"https://doi.org/10.5334/tilr.245","url":null,"abstract":"The European Convention on Human Rights, the regional international treaty adopted in 1950, requires that any restriction, limitation, or interference with the rights and freedoms guaran teed in the Convention should be ‘prescribed by law’, ‘in accordance with the law’ or ‘provided by law’. In the case-law of the European Court of Human Rights, the assessment of ‘legality’ requires that the impugned measure have a legal basis in national law, and refers to the qual ity of law. At the outset of the COVID-19 pandemic, numerous states worldwide rolled out a patchwork of different provisions limiting (restricting) the implementation of human rights and fundamental freedoms. Understandably, the immediacy of the emergency required a quick and efficient reaction from states; therefore, some situationally appropriate, however aggres -sive, restrictions on the exercise of human rights were imposed without a proper legal basis in national law. The article deals with the concept of the legality of limitations (restrictions) on the implementation of human rights and fundamental freedoms in a public health emergency, and in particular, the question of whether Article 15 of the Convention includes the possibility to deviate from the “classical” legality standard. The ‘derogation clause’ enshrined in Article 15 and the ‘restrictive clause’ established in, e.g., the second paragraphs of Articles 8–11, have an essential value in assessing the ‘legality’ of interference in the exercise of the Convention rights and freedoms during the COVID-19 pandemic, especially in cases where States Parties to the Convention had not used the possibility to derogate from the Convention obligations under Article 15. Relying on the case-law of the ECtHR in respect of the legality of interference in the exercise of human rights, the authors argue that legality in a state of emergency should follow the same logic as in the absence of such a state. This is reflected in the constitutional case-law, although the national dimension of the legality requirement varies depending on dif ferent constitutional arrangements in the countries.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70722950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Freedom to Conduct Business During the Covid-19 Pandemic","authors":"Dalia Vasarienė, L. Jakulevičienė","doi":"10.5334/tilr.246","DOIUrl":"https://doi.org/10.5334/tilr.246","url":null,"abstract":"Unprecedented restrictions on various human rights were applied during the COVID-19 pandemic, and considered crucial in most cases to halt the spread of infection. Yet, a number of critical issues were raised concerning the scope and proportionality of said restrictions. Among these, the freedom to conduct business was one of the most affected by measures implemented in the first lockdown which was applied in many Member States of the European Union. This article analyzes the protection of this freedom in situations of emergency, its conflict with the right to health, and explores whether jurisprudential and doctrinal bases applicable before the pandemic could be applied or if new principles need to be developed to address unprecedented situations like COVID-19. The criteria to determine the proportionality of these restrictions from the perspective of International and EU human rights law are also discussed. The authors argue that the freedom to conduct business, although not envisaged directly in the European Convention on Human Rights, is part of the right to property, and thus should be protected in the same manner. Based on that, the approach to the deprivation of the right to use property and denial of the essence of the freedom to conduct business should be applied similarly, though not identically, to the approach of de facto expropriation, where a question of full or partial compensation may be relevant in case of substantial business losses. For other restrictions the availability of compensatory measures should be one of the key aspects while considering the proportionality of COVID-19 measures in restricting the rights of individuals or businesses.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70723176","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Implications of the Recent Jurisprudence of the Court of Justice of the European Union for the Protection of the Fundamental Rights of Athletes and the Regulatory Autonomy of Sporting Federations","authors":"Wojciech Lewandowski","doi":"10.5334/tilr.193","DOIUrl":"https://doi.org/10.5334/tilr.193","url":null,"abstract":"Fundamental rights of the EU are in principle applicable in relations of vertical nature, in which individuals are confronted with the state. However, in relations of horizontal nature, in which both parties are individuals and on equal terms, applicability of the Charter of Fundamental Rights of the EU has been long disputed among scholars. Only recently, in rulings Egenberger and Bauer, the Court of Justice of the European Union has directly addressed this issue. This paper elaborates on the consequences of the Court’s decision for the European sports model, presents reasons for justification of horizontal applicability of fundamental rights of the EU towards sports and proposes a method of applying the framework developed by the Court to conducting sports activity in the EU. Main argument of the Author is that the rules regulating sporting activity, if this activity falls within the scope of the law of the EU, may be subject to assessment of conformity with fundamental rights of the EU thanks to direct horizontal applicability of the Charter, which explicitly results from the recent Court’s rulings.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"25 1","pages":"55-66"},"PeriodicalIF":1.7,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70722785","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards Equal Rights in the Global Game? FIFA Strategy for Women’s Football as a Tightly Bounded Institutional Innovation","authors":"Michele Krech","doi":"10.5334/tilr.190","DOIUrl":"https://doi.org/10.5334/tilr.190","url":null,"abstract":"FIFA’s recent (rhetorical) embrace of human rights prominently includes commitments to address gender discrimination and promote gender equality both on and off the pitch. What promise does FIFA’s ‘first-ever global strategy for women’s football’ hold as a means of fulfilling such commitments? A feminist institutionalist approach to this question offers insights into the bounded model of change endorsed by the Women’s Football Strategy. It reveals that the Strategy’s three key objectives serve as ‘common carriers’ for both long-standing institutional interests (in power, profit, and prestige) and newer institutional interests (in women footballers, women’s football, and women in football governance). The assumption that these two sets of interests are mutually reinforcing is brought into question by exposing the ways in which FIFA’s mainline institutional priorities, combined with certain structural features of football governance, blunt the reformist potential of the Women’s Football Strategy. Bounded by old institutional features, the Strategy reflects a partial and incremental, rather than comprehensive and revolutionary, approach to addressing gender discrimination. FIFA’s commitment to human rights therefore remains unfulfilled vis-a-vis women in football.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49349487","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutionalizing FIFA: Promises and Challenges","authors":"Bodo P. Bützler, Lisa Schöddert","doi":"10.5334/tilr.192","DOIUrl":"https://doi.org/10.5334/tilr.192","url":null,"abstract":"FIFA’s reformation process, which began with the World Cup bid in 2010 and culminated in the explicit inclusion of human rights in FIFA’s statutes since April of 2016, exemplifies how transnational sports law (lex sportiva) can undergo processes that contribute to the protection of human rights. In fact, when viewed through the lens of societal constitutionalism, FIFA’s reformation process can be analyzed as a process of emergent constitutionalization. This paper provides the requisite empirical investigation and applies Teubner’s theory on societal constitutionalism to study FIFA’s reform process. FIFA has effectively formulated limitative rules by introducing human rights to their private ordering. This marks a decisive evolutionary step in the way sport related disputes are settled by the Court of Arbitration for Sport (CAS). Given FIFA’s new statutes, human rights no longer just apply subsidiarily (if at all), but directly. Further going re-specialization and regime-specific application of human rights can also be observed in FIFA’s reformation process. Human rights are positivized by a process formed like a ‘patchwork quilt’, entwining pressure from NGOs, private ordering, contracts, CAS decisions, and national courts decisions. Each part represents a valuable contribution to FIFA’s ‘common law’ transnational, social constitution. But this self-evolving constitution can be effective only when coupled to regimes of reflexivity and enforceability. Our case study reveals that FIFA’s reformation process already features high levels of reflexivity. Nevertheless, it is lacking in regimes of enforceability. It remains an outstanding question to what extent FIFA can be held accountable for human rights violations. Here, the societal constitutionalist lens draws attention to the normative importance of society for limiting the negative effects which FIFA has on its environment.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"25 1","pages":"40-54"},"PeriodicalIF":1.7,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45973302","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Shared Responsibility and Human Rights Abuse: The 2022 World Cup in Qatar","authors":"R. Regueiro","doi":"10.5334/tilr.191","DOIUrl":"https://doi.org/10.5334/tilr.191","url":null,"abstract":"Since 2010, recurrent human rights violations of migrants working on building new or refurbishing existing infrastructure for the 2022 FIFA World Cup in Qatar have been denounced. This paper focuses on three of the main actors involved in those violations—Qatar, FIFA and Switzerland—in order to determine how shared responsibility could be a useful framework to ensure protection of and reparation to the victims. The article also raises serious questions about the application of shared responsibility and the effective enforcement of human rights when non-state actors are involved.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"25 1","pages":"27-39"},"PeriodicalIF":1.7,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47156679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"FIFA and Human Rights – a Research Agenda","authors":"A. Duval, Daniela Heerdt","doi":"10.5334/tilr.189","DOIUrl":"https://doi.org/10.5334/tilr.189","url":null,"abstract":"This special issue of the Tilburg Law Review aims to study the intersection between human rights and the way the Federation Internationale de Football Association (FIFA) governs and shapes football. The objective of this editorial is threefold. First, it highlights three different areas of research into the link between FIFA and human rights, namely its human rights impacts (section 2), policies (section 3) and responsibilities (section 4). Secondly, it maps existing research on FIFA and human rights for each section, thereby introducing some of the issues dealt with in more detail by the articles in this journal. Finally, it strives to contribute to the definition of a research agenda at the intersection of transnational law, lex sportiva, and (business and) human rights, by highlighting the questions that arise from linking a transnational private actor like FIFA to human rights (section 5).","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2020-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41787097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Metaphors to Legal Solutions","authors":"A. Meuwese, A. M. Viso","doi":"10.5334/tilr.173","DOIUrl":"https://doi.org/10.5334/tilr.173","url":null,"abstract":"","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42298344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Response to Sassen – Expulsion, Extraction and the Silent Enabler","authors":"Morag Goodwin","doi":"10.5334/tilr.171","DOIUrl":"https://doi.org/10.5334/tilr.171","url":null,"abstract":"Expulsion, extraction Sassen is one of our most influential analysts of globalisation. Her efforts to locate actors, such as nations or cities, within and against the various dynamics of globalisation have had a deep impact on how we conceptualise contemporary globalising forces. Her notion of assemblages of Territory, Authority and Rights (TAR) have given us a vocabulary for discussing how globalisation is constructed, undone and reformed; and her broad historical approach has given us greater insight into contemporary changes by allowing us to understand them as part of a longer trajectory, detailing how key concepts and notions have flowed and mutated from the Middle Ages onwards. In the context of her present lecture, two themes stand out in Sassen’s work. The first is an interest in electronic, capital markets as an elemental marker of twenty-first century globalisation. This is evidenced, for example, in her most well-known work (at least among lawyers), Territory, Authority, Rights,3 and has become the focus of her later work on high finance. The second theme is her interest in the dark side of globalisation, in its ‘discontents’4 and in those subject to ‘expulsions’5 – an interest that is represented here as the victims of the brutality of globalisation’s extractive logics. As with the idea of TAR assemblages, the characterisation of globalisation as extractive provides us with a powerful vocabulary for identifying and expressing the huge negative costs of economic globalisation to humans and the environment. It gives us a vivid way of understanding the harms done, not as a side-effect to be mitigated, but as the core logic of global capital. The language of extraction represents a shift from Sassen’s earlier vocabulary of expulsion and is a welcome one. ‘Expulsion’ as a term spoke to the brutalities of the global economy, and Sassen used it to refer to both the physical and social expulsion of individuals and communities from place and liveable space. Yet the term was less evocative than that of extraction: while it is easy to grasp how the global market in land leads to the expulsion of local people from the space that was once theirs, it is less easy to visualise how global capital leads to social inequalities and exclusion through the language of expulsion. It is certainly the case, as Sassen argues in this lecture, that city-dwellers are being pushed out as global capital seeks safe havens for their investments. Yet, on the whole, poorer citizens are not expelled from society; they are instead slowly but inexorably pushed out to the margins of social life and then out of sight. Expulsion is a dramatic often highly visible action and, as such, arguably fails to capture the processes of marginalisation that are precisely non-dramatic in their method, yet dramatic","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47439693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Predatory Formations Dressed in Wall Street Suits and Algorithm Math — Professor Sassen’s 2019 Montesquieu Lecture Summary","authors":"Oğuz Kırman, Silvia De Conca, Monaco Fairbanks, Stoyana Ivanova","doi":"10.5334/tilr.175","DOIUrl":"https://doi.org/10.5334/tilr.175","url":null,"abstract":"Professor Sassen opens the lecture 1 with the discussion of the rise of extractive logics. According to Sassen, once something—like value—has been extracted, it no longer matters what happens in the site where the extraction has taken place, even if the site is left void or deprived of something. Extractive logics have an absolute effect and are the opposite of creating something to grow, especially in terms of long-term effects on a place. Extraction logics have a negative nature, and Prof. Sassen provocatively asks: ‘How do we make it into a positive?’. Professor Sassen continues the lecture by discussing extractive According Sassen, they are a and visible Here Prof. Sassen introduces the associated by asking: ‘What She argues thought as according","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44467480","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}