C.M. Zoethout

Animals as Sentient Beings

Abstract The twenty-first century is witnessing a number of initiatives to improve the living conditions of animals - worldwide, at the regional and the national level. While the debate on which status should be granted to animals is still undecided, a consensus has emerged about the need for animal welfare and the (moral and legal) obligations of humans towards non-human animals. Today, animal welfare and our moral obligations towards animals have come to be accepted as part of public morality. This article draws attention to this change in moral and legal thinking over the past decades. The consequences of this change are put to the test with regard to a specific protective measure concerning animals - the prohibition of un-stunned (ritual) slaughter. It will be argued that if public morality in the 21st century does indeed include respect for the welfare of animals, it may serve as a legitimate aim to limit the freedom of religion and with that, the practice of un-stunned ritual slaughter.

Rethinking Adjudication under the European Convention

This chapter comments on the Lautsi judgements as a prelude to the core problem the case reveals. In the author views, the Lautsi case demonstrate that it is time for the Court to develop a new mode of adjudication-a form of review which makes it possible to act as a countermajoritarian institution and set a European standard, without infringing state sovereignty. The Chamber’s decision will be analyzed and the tournure of the Grand Chamber of the ECtHR in its reference to the margin of appreciation-a doctrine which masks the real basis for its decision. The position of rights under the convention is assessed. The chapter deals with the position of the ECtHR and the question whether the Court can truly be considered a countermajoritarian institution. It also assesses the different modes of judicial review and proposes a new mode of adjudication.

The European Court of Human Rights and Transnational Judicial Dialogue

Abstract Over the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Constitutionele antwoorden op toenemend pluralistische samenlevingen. Religieuze diversiteit in Frankrijk, Italië en Canada

In this article, the question is raised which constitutional answer to immigration is most sustainable with a view to future multicultural societies. I focus on the constitutional answers to immigration in France, Italy and Canada. In France, in 2010, legislation was adopted prohibiting the wearing of face-covering clothing in public. With this ban, the French intended to enhance the equal participation of citizens in society and to protect the equality of the sexes. In Italy, a heated debate took place about the display of crucifixes in (public) schools, which resulted in a restoration of the predominance of the Catholic religion. Across the ocean, in the Canadian province of Quebec, the National Assembly of Quebec has been discussing a ‘Charter’, whose prevailing idea is to enhance the neutrality of the state, among others by prohibiting religious clothing in public institutions. The question is which of these approaches is best defensible to regulate a society, which will undoubtedly become even more diverse in the near future.