Law and Ethics of Human Rights最新文献

{"title":"The Blessing of Departure: Acceptable and Unacceptable State Support for Demographic Transformation: The Lieberman Plan to Exchange Populated Territories in Cisjordan","authors":"T. Waters","doi":"10.2202/1938-2545.1021","DOIUrl":"https://doi.org/10.2202/1938-2545.1021","url":null,"abstract":"What limits ought there be on a state’s ability to create a homogeneous society, to increase or perpetuate non-diversity, or to create hierarchies within existing diversity? This article examines those questions with reference to the Lieberman Plan—which proposes to transfer populated territories from Israel to the Palestine in exchange for Jewish settlements on the West Bank— as an abstract exercise in demographic transformation by the state. First the article considers if the Lieberman plan would “work”: Would it create the alterations it proposes, and would those changes achieve a stable, peaceful, perhaps even just settlement? It finds that though there is debate about the range of effect, there is little doubt that transfer would alter the state’s demography. It then turns to the international standards that might govern the transfer of territory and the denaturalization of citizens, to see how they would characterize such a plan. It finds that comparisons to ethnic cleansing are inapposite, and that norms protecting citizenship are considerably more complex than they first appear—even allowing ethnically targeted denaturalization in some cases.The article then analyzes the loyalty provisions of the Lieberman Plan, and notes that, contrary to the usual normative assumption that citizenship is tied to the state, the foundations of citizenship are actually a habitual or formative link to a given territory, which in turn creates a right to citizenship not in any particular state, but in the one that incidentally is sovereign over that territory. This interaction of citizenship and territory, when considered together with norms requiring equal protection for all citizens, suggests that the polity has an interest in defining its own territorial scope, and thereby its membership. The legal regime is ambiguous, and therefore deliberations about this question are in the realm of politics. The article demonstrates how transfer’s assimilation to existing norms suggests a novel interpretation of selfdetermination with far-reaching consequences for both sides of the conflict.Finally, the article notes that international law, though it polices excesses, is largely silent on the principal determinant of demography: the fact of state control over territory.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 65"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763431","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 Different Departure: A Reply to Shany's \"Redrawing Maps, Manipulating Demographics: On Exchange of Populated Territories and Self-Determination\"","authors":"T. Waters","doi":"10.2202/1938-2545.1023","DOIUrl":"https://doi.org/10.2202/1938-2545.1023","url":null,"abstract":"Anyone reading Yuval Shany’s response to my article, “The Blessing of Departure—Exchange of Populated Territories The Lieberman Plan as an Abstract Exercise in Demographic Transformation,” would hardly characterize it as “agreement.” In part this is because Shany builds his case by assuming I am saying something about self-determination that misses—at least misplaces—my real point. This is unfortunate, both as it masks the fact that Shany and I actually agree transfers can be legal, and it distracts attention from the points of real, substantive disagreement. The misreading is not an accident, rather the product of a patterned view. The points of disagreement, center on: whether transfer is a harm per se; whether the presence of a minority affects the state’s power to transfer; whether there is a positive right not to be denationalized; and whether there is a hierarchy of rights.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 13"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1023","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763516","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":"Benhabib on Democratic Iterations in a Global Order","authors":"Yossi Dahan, Yossi Yonah","doi":"10.2202/1938-2545.1015","DOIUrl":"https://doi.org/10.2202/1938-2545.1015","url":null,"abstract":"Seyla Benhabib’s article, “Twilight of Sovereignty or the Emergence of Cosmopolitan Norms” offers a penetrating analysis of the contemporary global order and suggests a normative approach by which to mend its structural failures—viewed from the democratic ideal of popular sovereignty and guided by what she calls “cosmopolitan norms.”The authors take issue with Benhabib's position on both the descriptive and the normative grounds, and make three critical points in this matter: the first two points concern Benhabib's descriptive portrayal of the global order. The third critical point concerns her normative position, i.e., her ideal of the good (global) polity, displayed through her idea of “democratic iteration” operating through global civil society.The critical assessment of Benhabib's views ensues from the authors’ endorsement of the transformationalist position—the state, although somewhat undermined by global processes, still possesses considerable power and maintains a crucial role in determining the trajectory of these processes.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 14"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762667","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":"Democracy, Demography, and Sovereignty","authors":"S. Benhabib","doi":"10.2202/1938-2545.1014","DOIUrl":"https://doi.org/10.2202/1938-2545.1014","url":null,"abstract":"In this article I examine recent debates concerning the emergence of cosmopolitan norms that protect individuals’ rights regardless of their citizenship status, and the spread of what some have called “global law without a state.” I distinguish between the spread of human rights norms and the emergence of deterritorialized legal regimes, by focusing on the relationship between global capitalism and legal developments arguing that “cosmopolitan norms” can enhance popular sovereignty while other forms of global law do not do so. The latter “fragment the public sphere” and create “privatized” norms of justification.I suggest that Israel inhabits three spatio-temporal modalities of sovereignty simultaneously, and this accounts for the enormously complex and existential nature of the dilemmas it faces: First, Israel is in a pre-Westphalian zone; second, for the Jewish population within its borders and for its one and a half million Arab citizens, Israel is a Westphalian state, which in fact exhibits strong features of a liberal, social democracy; and third, Israel is part of the global techno-economic complex. Within the three distinct spatio-temporal zones of sovereignty inhabited by contemporary Israel, one can detect new reconfigurations of sovereignty and citizenship that have not been exhausted.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 32"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1014","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763101","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":"Comparative Citizenship: A Restrictive Turn in Europe?","authors":"C. Joppke","doi":"10.2202/1938-2545.1018","DOIUrl":"https://doi.org/10.2202/1938-2545.1018","url":null,"abstract":"In the rapidly growing literature on comparative citizenship, a dominant assumption is that the nationality laws in Western states are converging on liberal norms of equality and inclusiveness. However, especially since the onset of the new millennium and an apparent failure of integrating Muslim immigrants there has been a remarkable counter-trend toward more restrictiveness. This paper reviews the causes and features of restrictiveness in the heartland of previous liberalization, north-west Europe. It is argued that even where it seems to be strongest: with respect to the rules of naturalization, the restrictive trend is embedded within an overall liberal, sometimes even liberalizing framework. The notion of a wholesale “restrictive turn in Europe” therefore has to be rejected.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 41"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763230","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":"Liberal Laws V. the Law of Large Numbers, or How Demographic Rhetoric Arouses Anxiety (in Germany)","authors":"Jose Brunner","doi":"10.2202/1938-2545.1016","DOIUrl":"https://doi.org/10.2202/1938-2545.1016","url":null,"abstract":"This paper presents the metaphysics of liberal rights reasoning on the one hand and that of demographic reasoning on the other, as exemplifying two worldviews that both compete and complement each other in the contemporary German public debate on demographic decline.First, this essay outlines the way in which liberal theorists of various outlooks, perfectionist and neutralist alike, assume that a wide range of rights serves not only the interests of those individuals who possess them, but that it constitutes the foundations of a just and stable political order in general and therefore is to the advantage of everyone.Second, the essay explains how demographic reasoning questions the assumption of harmony shared by the liberal approaches.Third, it provides an impression of the way in which demographic arguments have been deployed in the public sphere in Germany in the last few years. These arguments associate the autonomy of women with the demise of Germany. They claim that by encouraging women to pursue self-realization as self-interested individuals, the modern secular ethos of Germany as a democratic welfare society may be self-destructive in the long run, since it leads to sub-replacement fertility.Finally, the essay stresses that liberal and demographic perspectives share a “blindness” of historical events. In response, the conclusion brings history back in, by historicizing both demographic reasoning and demographic developments in Germany, with the aim of defusing some of the anxieties that may have been aroused by the current debate.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 34"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762687","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":"Demography, Human Rights, and Diversity Management, American-Style","authors":"P. Schuck","doi":"10.2202/1938-2545.1017","DOIUrl":"https://doi.org/10.2202/1938-2545.1017","url":null,"abstract":"This paper uses diversity management as a placeholder for human rights policy. By diversity management, I mean those policy techniques that a society can use to deal with diversity, which include not only decisions to make diversity a subject of active legal and governmental intervention, but also decisions to leave diversity to informal, unregulated choices by individuals or civil society institutions. My discussion proceeds with particular reference to the United States, in part because it has been relatively successful in managing its diversity in recent decades—relative, that is, both to its own past (especially the pre-1965 period) and to the record of other countries today. (Serious, long-standing problems in the integration of certain minorities in the U.S. remain, most notably with respect to three groups: Native-Americans, “underclass” black men, and unskilled, often undocumented, immigrants.)An approach to diversity management “works,” in my view, if and to the extent that the country’s vulnerable minorities (a) enjoy some social mobility, (b) are integrated into the major institutions of society, (c) have access to political influence roughly proportional to their limited numbers, (d) are free to live according to their own group values and practices, and (e) do not feel deep alienation from the dominant cultural norms. By this definition, the American system works relatively well—with the qualifications and exceptions noted just above. The paper proceeds in three parts. Part I seeks to sharpen our understanding of diversity by analyzing several different ways of understanding and defining that idea, with a view to underscoring the significance of choosing one or another measure of it. Part II discusses two examples— multiracial individuals and anti-profiling laws—to illustrate the inevitable politicization of certain demographic categories when used for politicallysensitive purposes. Part III presents some distinctive and, in some cases, unique features of the American approach to diversity management. Most of these features, I argue, effectively advance the cause of minority mobility and integration, whereas some tend to undermine these goals.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 40"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763153","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":"Nationalist Priorities and Restrictions in Immigration: The Case of Israel","authors":"Chaim Gans","doi":"10.2202/1938-2545.1024","DOIUrl":"https://doi.org/10.2202/1938-2545.1024","url":null,"abstract":"It may be that the appropriate demographic objective of Israel as a country in which the Jewish people realize their right to self-determination is the existence of a Jewish public in Israel in numbers sufficient to allow its members to live in the framework of their culture. It may also be that the appropriate demographic objective of Israel should be the existence of a Jewish majority within it. While I discussed this issue elsewhere; here I discuss the legitimate means for the realization of these goals. Israel’s principal means for realizing these objectives thus far has been its Law of Return and its Citizenship Law. These laws afford every Jew anywhere in the world the right to immigrate to Israel and become a citizen of the State of Israel. Many liberals and left-wingers consider these laws to be tainted with racism, because they regard any nationally-based preference with regard to immigration to be a form of racism. In the first part of my paper I argue against this position. I offer three justifications for nationality-based preferences in immigration. However, the fact that nationality-based priorities in immigration are not necessarily racist and that there are legitimate human interests justifying such priorities, does not entail that the specific priorities manifested by Israel’s Law of Return and its other immigration and citizenship policies are just. These policies in effect mean that all Jews and only Jews (or anyone related or married to a Jew) have the right to immigrate to Israel and to become fully integrated in Israeli life. In the second part of the paper, I argue that these two aspects of Israel’s immigration policies, namely, its almost categorical inclusion of all Jews and its almost categorical exclusion of all non-Jews, are somewhat problematic. In addition to the Law of Return, a number of additional ways to ultimately increase the number of Jews in relation to the number of Arabs have been proposed and even adopted in Israel in recent years. During the incumbency of the fifteenth Knesset, right-wing Member of Knesset Michael Kleiner tabled a draft bill intended “to encourage people that do not identify with the Jewish character of the state [i.e., Palestinian citizens of Israel C.G.] to leave.” The Israeli Government later tabled a bill—that was eventually passed—to amend the Israeli Citizenship Law in a manner that would deny Arabs who are Israeli citizens and have married Palestinian residents of the Occupied Territories the right to live in Israel with their spouses and children. In the third part of the paper, I clarify why in contrast to granting Jews priority in immigration, both the aforementioned laws, namely, Kleiner’s law and the law pertaining to family unification are racist and are therefore morally unacceptable.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 19"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1024","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763535","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":"Notes on the Value of Theory: Readings in the Law of Return-A Polemic","authors":"Raef Zreik","doi":"10.2202/1938-2545.1026","DOIUrl":"https://doi.org/10.2202/1938-2545.1026","url":null,"abstract":"The case of Israel generally, and specifically regarding the justifications put forth for the Law of Return by a wide range of liberal scholars, accents the main problems and weaknesses of liberal legality. Part one of the paper rethinks aspects of liberal legality and its artificial nature in light of debates surrounding the Law of Return. Debating both the case of Israel and the insistence of many Israeli scholars on justifying the Law using liberal terms, this part reveals certain aspects of liberalism that usually remain hidden.Part III comments on Israel and evaluates the Law of Return while comparing it to similar laws, arguing that even after revisiting liberal legality, the Law of Return scores badly according to the criteria of liberal legality. Thus, the first analysis places Israel within a paradigm, revealing that Israel may not be so exceptional. For those who view liberalism as a pure, ideal theory (both those who support the Law and think that it passes the test of liberalism and those who oppose the Law and think that it fails the test of liberalism) this paper points to the dark side of liberalism, and thereby suggests that Israel might not be the only “pariah” state, but even within the new paradigm (the second analysis), the Law of Return is at the extreme end of the spectrum and scores badly.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 44"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1026","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763600","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":"Comparative Citizenship: A Restrictive Turn in Europe and a Restrictive Regime in Israel: Response to Joppke","authors":"Sammy Smooha","doi":"10.2202/1938-2545.1019","DOIUrl":"https://doi.org/10.2202/1938-2545.1019","url":null,"abstract":"Smooha argues that Joppke's thesis in his paper on comparative citizenship in Europe—there is no restrictive turn in citizenship and immigration laws and practices in Europe—is questionable. This is true not only for the pre-enlargement 15 EU countries during the years 1980-2006 under Joppke's study, but also for the post-enlargement 27 EU countries. When the time range is broadened to the post-1945 period, it is clear that the historical trend of liberalization has come to an end in Europe and this is in spite of Europe's dire need of immigrants and the great desire of non-Europeans to immigrate to Europe. Europe is particularly fearful of Moslems, Arab Moslems, and Black Africans.Nevertheless, the comparison between Israel and the EU countries can put the discussion on Europe in perspective. Israel can be representative of non-European countries that claim to be Western or European countries that are latecomers to the West. When these countries are compared to the 15 EU countries, as described and analyzed by Joppke, it is evident that the EU core is liberal and Israel and non-core European countries are not liberal in their laws and practices. EU laws on immigration and naturalization are motivated only partially by ethnicity while those of other countries are more shaped by ethnic considerations and those of Israel are mainly determined by ethnicity and ethnicity-based fear.According to Smooha the EU might move in Israel's highly restrictive direction when it feels that its Western civilization, national cultures, and internal security are more significantly and increasingly threatened by non-European immigrants and their descendants.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 12"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1019","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763303","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}