Marie-Benedicte Dembour

Human rights law and national sovereignty in collusion: the plight of quasi-nationals at Strasbourg

This article offers a review of the cases where the European Court of Human Rights has been called upon to decide whether or not the expulsion of a ‘quasi-national’ following criminal conviction violated the European Convention on Human Rights. The Court has adopted various findings since its first ruling in 1991. The first part of this article argues that neither the facts of the cases, nor the composition of the relevant judicial panels, nor an evolution in the overall political climate explain in themselves the inconsistency in the case law, qualified as arbitrariness by one of the judges. The second part of the article moves beyond a close socio-legal analysis to discuss the significance of the common rule (once inadmissibility decisions are taken into consideration), according to which quasi-nationals are deportable. Nationality law, at the core of the case law, is revealed as a fiction that creates privilege at the same time as it obscures the discriminatory basis of this privilege under the guise of operating a neutral categorisation of human beings. The article notes in conclusion the continuing grip of the nation State in the global age and deplores the legitimation, at the highest judicial level, of exclusion on the basis of unquestioned national privilege.

La chicote comme symbole du colonialisme belge

AbstractThe whipping of African prisoners during the Belgian colonial period is a common theme for artists of the Zairian urban popular school. Their paintings, frequently referred to in contemporary academic literature on the former Belgian colony, are used here as a starting point for an analysis of the discourse of former territoriaux regarding their use of the whip in their colonial administrative functions. After reviewing the different arguments which they present to justify this practice, I question the “weight” which was/is given to whipping in the colonial world. I argue that the pictures reduce colonial reality to an image which, although not false, does not reflect the range of possible reactions towards it. In the final analysis, the paintings cannot merely be used as a condemnation of colonialism which does not take into account post-colonialism.

Postcolonial denial: why the European court of human rights finds it so difficult to acknowledge racism

The European Convention on Human Rights (hereafter, Convention) was signed in 1950 by Western European governments committed to prevent the repetition of the horrors and atrocities of World War II – not to mention the erection of a bulwark against communist Eastern Europe. Admittedly, justice was not originally at the forefront, and has indeed very much remained in the background, of discussions about the Convention system. Nonetheless an implicit narrative has always suggested that the protection of human rights is conducive to the realization of justice. This is clear, for example, in the Conventions Preamble which specifically “reaffirmed” a “profound belief in those fundamental freedoms which are the foundation of justice and peace in the world.” The Preamble referred to “like-minded” governments that shared “a common heritage of political traditions, ideals, freedom and the rule of law.” Not wanting the Convention to be mere words, the members established a system of judicial protection, which was a first in international law. The European Court of Human Rights (hereafter, Court) soon “earned a world-wide reputation for fairness, balance and intellectual rigour” (Harris et al., 1995: vii). This chapter challenges the implicit making of an equation between human rights law and justice by examining a specific area where the record of the Court is anything but strong, that of racial discrimination. In this area, those who have arguably been victims of human rights violations have not met justice at Strasbourg.

The European court of human rights and immigration: Limits and possibilities

Th is special issue of European Journal of Migration and Law asks the question of how the universalistic values of western liberal tradition, as exemplifi ed by the European Convention of Human Rights (the Convention), relate to present day national immigration policies. Th is question has been subject to some academic debate in recent years. Some scholars express a strong belief in the growing impact of international human rights law upon immigration policy. Yasemin Soysal, for example, argues that a reconfi guration of citizenship has taken place; from a more particularistic one based on nationhood, to a more universalistic one based on individual rights. She argues that rights which used solely to belong to nationals are now being extended to foreign populations. Increasingly, in her view, claims of individuals are legitimated by ideologies grounded in a transnational community. She particularly refers to the jurisprudence of the European Court of Human Rights (Court) to substantiate this assertion.1 By contrast, other scholars point out that international human rights law, like any other form of law, can only be eff ective to the extent that it is implemented within a concrete national context. Linda Bosniak has illustrated that national immigration law regimes have recently become more rather than less restrictive, curtailing the human rights of immigrants rather than extending them. Although Bosniak does not deny the signifi cance of international human rights for debating the legitimacy of such measures in the national context, she is less convinced than Soysal of the inevitable triumph of the universalistic principles of international human rights law over nationalism as a political factor. Rather, she signals the enduring tension that exists between the exclusionary and universalistic commitments that the concept of citizenship implies.2 Moreover, her analysis suggests that this tension cannot simply melt away in an evolutionary progression towards universal citizenship. For the benefi ts that citizenship has to off er are determined, in part at least, by how citizens are distinguished from non-citizens.

The conscious death of a two year old: beautiful and unbearable

This article draws on the personal experience by the author of an infants illness and death to make three points: 1) children, however young, should be recognized as conscious beings, able to handle their dying process; 2) close relatives and medical staff may not be able to face the impending death of a patient; professionals may need to be brought in to help them come to terms with a situation of terminal illness; 3) by keeping illness and death away from its center, society dehumanizes these very human processes.