Law and Ethics of Human Rights最新文献

{"title":"Crowdwashing Surveillance; Crowdsourcing Domination","authors":"Tamar Megiddo","doi":"10.1515/lehr-2023-2005","DOIUrl":"https://doi.org/10.1515/lehr-2023-2005","url":null,"abstract":"Abstract Governments regularly rely on citizens’ cooperation in exercising their authority, including the enforcement of rules. This is not only common, but also a necessary practice in a legal system. Technology makes such reliance easier, facilitating increased enforcement of law at little cost. Emergency provides an added legitimizing logic, encouraging citizens’ cooperation and leading them to uncritically follow the government’s lead to reduce the risk to the nation and to themselves. This article considers governments’ crowdsourcing citizens to monitor and surveil other citizens. One central concern this practice raises is that it allows governments to circumvent the limits of their legitimate authority and to augment their power while also obscuring the actor responsible for the surveillance and enforcement action. Consequently, accountability and public oversight over the government are diminished. Where does conventional enlisting of cooperation from law-abiding citizens end, and crowdsourcing totalitarian mass mobilization of citizens against fellow citizens begin? The article’s principal claim is that a bright line should be drawn where governments’ crowdsourcing of information from citizens serves as a means to circumvent democratic checks on their power to collect information, while also disguising the actor responsible for the surveillance. Such practice severely erodes social trust between citizens, jeopardizing their ability to organize and collaborate as engaged citizens and thus serve as a check on government. It further grants excessive power to some citizens over others, endangering the latter’s freedom, especially where the information gathered is used to symbolically or actually exclude certain individuals from the political community.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135703361","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":"Crowdsourcing Compliance: The Use of WikiRate to Promote Corporate Supply Chain Transparency","authors":"Galit A. Sarfaty","doi":"10.1515/lehr-2023-2004","DOIUrl":"https://doi.org/10.1515/lehr-2023-2004","url":null,"abstract":"Abstract This article analyzes the use of crowdsourcing to promote corporate sustainability by assessing compliance with supply chain disclosure laws. It draws on a case study of WikiRate.org as a novel example of crowdsourcing compliance with respect to the UK Modern Slavery Act and U.S. conflict minerals legislation (section 1502 of the Dodd-Frank Financial Reform Act). WikiRate is an open research platform whose mission is to crowdsource better companies by motivating corporations to be transparent about their environmental, social, and governance performance. In particular, WikiRate’s projects on modern slavery and conflict minerals harness the power of citizens to evaluate the quality of corporate disclosures produced in accordance with these laws. Following an analysis of its projects on modern slavery and conflict minerals, I evaluate the challenges of using crowdsourcing to assess legal compliance, including the potential manipulation of data and the difficulty of relying on non-expert citizens to assess complex information in corporate disclosures. I argue that one must identify the appropriate “crowd” that would be most capable of assessing compliance with a given law. While crowdsourcing platforms such as WikiRate invite a broad range of stakeholders to assess compliance, the reality is that only a limited set of individuals may be able to meaningfully participate given the complexity of supply chain disclosures. Thus, “expertsourcing” may be a more appropriate tool for assessing compliance with certain laws as it limits participation to citizens with specialized expertise.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135382072","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":"Frontmatter","authors":"","doi":"10.1515/lehr-2023-frontmatter1","DOIUrl":"https://doi.org/10.1515/lehr-2023-frontmatter1","url":null,"abstract":"","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135382073","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":"Rights Revolution and Counter-Revolution: Democratic Backsliding and Human Rights in Hungary","authors":"Gábor Halmai","doi":"10.1515/lehr-2020-2013","DOIUrl":"https://doi.org/10.1515/lehr-2020-2013","url":null,"abstract":"Abstract The Article discusses the democratic backsliding after 2010 in Hungary, and how it affected the state of human rights in the country, a Member State of the European Union. The main argument of the Article is that paradoxically the non-legitimate 1989 constitution provided full-fledged protection of fundamental rights, while the procedurally legitimate 2011 constitution-making resulted in curtailment of rights and their constitutional guarantees. The Article first describes the democratic transition that occurred in 1989–1990 as a rights revolution and the results of the 2011 “illiberal” constitution, called Fundamental Law, as counter-revolution. The second part of the Article illustrates the constitutional and statutory regulation of human rights protection after this “rule of law revolution,” and the activist jurisprudence of the first Constitutional Court using the concept of an “invisible constitution” to protect human rights. The third part discusses the rights provisions of the new Fundamental Law and several statutes dismantling the guarantees of human rights, with special attention to the decreased possibilities of state institutions, such as the Constitutional Court, the ordinary judiciary and ombudsmen, as well as civil society organizations to effectively protect fundamental rights. The fourth part assesses the efforts of European institutions to force the Hungarian government to comply with the human rights standards laid down in the European Convention of Human Rights and in the Treaty of the European Union. The Article concludes that neither internal nor external challenges could prevent the development of a new authoritarian regime with no guaranteed human rights.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/lehr-2020-2013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44785232","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":"Illiberal Measures in Backsliding Democracies: Differences and Similarities between Recent Developments in Israel, Hungary, and Poland","authors":"M. Kremnitzer, Y. Shany","doi":"10.1515/lehr-2020-2010","DOIUrl":"https://doi.org/10.1515/lehr-2020-2010","url":null,"abstract":"Abstract Around the world, many liberal democracies are facing in recent years serious challenges and threats emanating inter alia from the rise of political populism. Such challenges and threats are feeding an almost existential discourse about the crisis of democracy, and recent legal and political developments in Israel aimed at weakening the power of the Supreme Court and other rule of law institutions have also been described in such terms. This Article primarily intends to explore the relevance of the discourse surrounding the decline of liberal democracy, and its possible relevance for Israeli democracy, by examining the principal similarities and differences between specific legislative and administrative measures recently taken or contemplated in Israel and in two Central European states: Poland and Hungary. We focus on three sets of illiberal measures adopted or contemplated in Hungary, Poland, and Israel: (i) measures directed at limiting the power of the judiciary; (ii) measures intended to restrict the operation of civil society organizations; and (iii) measures directed at curbing dissent to governmental policies and at influencing the discourse in the media and academia. Although Israeli democratic institutions still retain much of their independence and vitality, we nonetheless find some degree of similarity between measures taken or contemplated by Hungary, Poland, and Israel, despite the many differences between their legal systems, historical contexts, political cultures, and the distinct stages of backsliding they seem to experience.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/lehr-2020-2010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42613336","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":"Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine","authors":"Yaniv Roznai, Tamar Hostovsky Brandes","doi":"10.1515/lehr-2020-2011","DOIUrl":"https://doi.org/10.1515/lehr-2020-2011","url":null,"abstract":"Abstract The world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/lehr-2020-2011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47057004","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":"Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India","authors":"Tarunabh Khaitan","doi":"10.2139/SSRN.3367266","DOIUrl":"https://doi.org/10.2139/SSRN.3367266","url":null,"abstract":"Abstract Many concerned citizens, including judges, bureaucrats, politicians, activists, journalists, and academics, have been claiming that Indian democracy has been imperilled under the premiership of Narendra Modi, which began in 2014. To examine this claim, the Article sets up an analytic framework for accountability mechanisms liberal democratic constitutions put in place to provide a check on the political executive. The assumption is that only if this framework is dismantled in a systemic manner can we claim that democracy itself is in peril. This framework helps distinguish between actions that one may disagree with ideologically but are nonetheless permitted by an elected government, from actions that strike at the heart of liberal democratic constitutionalism. Liberal democratic constitutions typically adopt three ways of making accountability demands on the political executive: vertically, by demanding electoral accountability to the people; horizontally, by subjecting it to accountability demands of other state institutions like the judiciary and fourth branch institutions; and diagonally, by requiring discursive accountability by the media, the academy, and civil society. This framework assures democracy over time – i.e. it guarantees democratic governance not only to the people today, but to all future peoples of India. Each elected government has the mandate to implement its policies over a wide range of matters. However, seeking to entrench the ruling party’s stranglehold on power in ways that are inimical to the continued operation of democracy cannot be one of them. The Article finds that the first Modi government in power between 2014 and 2019 did indeed seek to undermine each of these three strands of executive accountability. Unlike the assault on democratic norms during India Gandhi’s Emergency in the 1970s, there is little evidence of a direct or full-frontal attack during this period. The Bharatiya Janata Party government’s mode of operation was subtle, indirect, and incremental, but also systemic. Hence, the Article characterizes the phenomenon as “killing a constitution by a thousand cuts.” The incremental assaults on democratic governance were typically justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by the undeniable imperfection of our institutions) and a divisive rhetoric of hyper-nationalism (which brands political opponents of the party as traitors of the state). Since its resounding victory in the 2019 general elections, the Modi government appears to have moved into consolidation mode. No longer constrained by the demands of coalition partners, early signs suggest that it may abandon the incrementalist approach for a more direct assault on democratic constitutionalism.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48460443","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":"Frontmatter","authors":"","doi":"10.1515/lehr-2020-frontmatter1","DOIUrl":"https://doi.org/10.1515/lehr-2020-frontmatter1","url":null,"abstract":"","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/lehr-2020-frontmatter1","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43079505","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 Machinery of International Law and Democratic Backsliding: The Problem of Term Limits","authors":"Tom Ginsburg","doi":"10.1515/lehr-2020-2012","DOIUrl":"https://doi.org/10.1515/lehr-2020-2012","url":null,"abstract":"Abstract Our era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to retain power beyond what is constitutionally allowed. This Article documents these cases and calls for a more robust and substantive international law of democracy-protection.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/lehr-2020-2012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46309740","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 Technologies of Discrimination: How Platforms Cultivate Gender Inequality","authors":"Arianne Renan Barzilay","doi":"10.1515/LEHR-2019-2006","DOIUrl":"https://doi.org/10.1515/LEHR-2019-2006","url":null,"abstract":"","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78205785","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}