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  • S Fredman, ' Taxation as a Human Rights Issue: Gender and Substantive Equality' in Alston P and Reisch N (eds), Tax, Inequality and Human Rights (Oxford University Press 2019)
    DOI: 10.1093/oso/9780190882228.003.0004
    This chapter suggests a four-dimensional conception of substantive equality to evaluate the gendered impacts of taxation policies from a human rights perspective. The four-dimensional framework of substantive equality in relation to gender regards the right to equality as aiming to, first, redress disadvantage (the redistributive dimension); second, address stigma, stereotyping, prejudice, and hatred (the recognition dimension); third, facilitate participation and voice (the participative dimension); and, fourth, accommodate difference and transform gendered structures in society (the transformative dimension). This multidimensional conception of substantive equality functions as a valuable tool in evaluating taxation systems for their impact on gender. The chapter then looks at two particularly challenging aspects of taxation and gender: the role of care work, and the role of value-added tax (VAT) and other indirect taxes.
  • L Lazarus, 'Insecurity and Human Rights' in Dapo Akande, Jaakko Kuosmanen and Dominic Roser (eds), Human Rights and 21st Century Challenges: Poverty, Conflict and the Environment (Oxford University Press 2019) (forthcoming)
    Explores whether we can develop a notion of 'tolerable insecurity' which can be found in the courts balancing between positive rights to security, and negative rights to state limitation.
  • L Lazarus, 'Secrecy as a Meta-Paradigmatic Challenge' in Benjamin Goold and Liora Lazarus (eds), Security and Human Rights (Hart Publishing 2019)
  • L Lazarus, 'Securitizing Sustainable Development? – the coercive sting in SDG 16' in Markus Kaltenborn et al (ed), SDGs and Human Rights (Springer 2019) (forthcoming)
  • L Lazarus and Benjamin J. Goold, 'Security and Human Rights: Finding a Language of Resilience and Inclusion' in Benjamin J. Goold and Liora Lazarus (eds), Security and Human Rights (Hart Publishing 2019)
  • D. Akande and Talita de Souza-Dias, 'A New Approach to the"Interests of Justice” in the Ten Years Ahead of the Rome Statute' (2018) ICCForum.com
    We believe that a key reform that has the potential to make the international criminal justice project stronger, more efficient, and more effective is the consideration of peace negotiations as an additional factor in the Prosecutor’s decision of whether or not to pursue an investigation or prosecution “in the interests of justice,” in accordance with Article 53(1)(c) and 2(c) of the Rome Statute. At present, this would require a revision of the Policy Papers issued on this question, in particular, the 2013 Policy Paper on Preliminary Examinations and the 2007 Policy Paper on the Interests of Justice. Significantly, we believe that this reform has the potential to prevent or alleviate, at least in part, some of the most pressing problems mentioned by the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) in its question for this issue of the ICC Forum, namely, the lack of state cooperation, limited budget, and lengthy or complex proceedings.
  • D. Akande, 'An Analysis of why the ICC does not have Jurisdiction over the Crime of Aggression Committed by Nationals of ICC Parties which have not Ratified the Kampala Aggression Amendments' (2018) ICCForum.com
    This piece examines the question of who will be subject to the ICC’s jurisdiction with respect to the crime of aggression. One of the most contentious questions in the negotiations that have taken place, since the adoption of the Rome Statute, regarding the crime of aggression is the question whether the Court’s normal jurisdictional regime should apply to the crime of aggression. A key point that divided the parties during the aggression negotiations was whether the Court should have jurisdiction over nationals of a state that does not ratify the aggression amendments but which is alleged to have committed an act of aggression on the territory of a state has accepted the aggression amendments. At the Kampala Review Conference, a provision was included in the aggression amendments by which states parties to the Rome Statute could opt out from the Court’s jurisdiction over aggression. While some states asserted that the Kampala Amendments essentially created an opt-out regime, under which nationals of states parties to the Rome Statute were covered by ICC jurisdiction unless their state opted-out, others maintained the regime for aggression was essentially an opt-in regime under which nationals of state parties were not within the jurisdiction of the Court unless their state opted-in. The dispute on this issue continued right up to the 2017 ICC Assembly of States Parties meeting in New York at which the ICC’s jurisdiction over the crime of aggression was activated. The resolution adopted in New York endorsed the “narrow view” of ICC jurisdiction and asserted that its jurisdiction over the crime of aggression was essentially based on states parties opting in. This comment first considers the legal effect that the New York resolution will have in determining this jurisdictional question. It is argued that the although an ASP resolution adopted by consensus can, in principle, be regarded as a subsequent agreement of the parties to the Rome Statute that establishes their authentic interpretation of the Statute, within the meaning of the Vienna Convention on the Law of Treaties, the New York resolution does not, in itself, provide the definitive answer as to the correct interpretation of the Rome Statute. It is argued that despite being adopted by consensus, and despite being highly relevant for the interpretation of the Rome Statute and Kampala Amendments, this resolution does not necessarily amount to a subsequent agreement or subsequent practice that the Court is legally bound to follow. Nevertheless, it is argued that the position adopted in New York with regard to the jurisdiction of the Court over nationals of states parties that do not ratify the aggression amendments is the correct legal position and the one that the Court, including the Office of the Prosecutor, ought to adopt. This comment argues that the answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala and that the key to addressing that issue is to understand how the amendment provisions of the Rome Statute work, in conjunction with basic principles of the law of treaties.
  • S Fredman, Comparative Human Rights Law (Oxford University Press 2018)
    DOI: 10.1093/oso/9780199689408.001.0001
    Courts in different jurisdictions face similar human rights questions. Does the death penalty breach human rights? Does freedom of speech include racist speech? Is there a right to health? This book uses the prism of comparative law to examine the fascinating ways in which these difficult questions are decided. On the one hand, the shared language of human rights suggests that there should be similar solutions to comparable problems. On the other hand, there are important differences. Constitutional texts are worded differently; courts have differing relationships with the legislature; and there are divergences in socio-economic development, politics, and history. Nevertheless, there is a growing transnational conversation between courts, with cases in one jurisdiction being cited in others. Part I sets out the cross-cutting themes which shape the ways judges respond to challenging human rights issues. It examines when it is legitimate to refer to foreign materials; how universality and cultural relativity are balanced in human rights law; the appropriate role of courts in adjudicating human rights in a democracy; and the principles judges use to interpret human rights texts. The book is unusual in transcending the distinction between socio-economic rights and civil and political rights. Part II applies these cross-cutting themes to comparing human rights law in the US, UK, South Africa, Canada, and India. Its focus is on seven particularly challenging issues: the death penalty, abortion, housing, health, speech, education and religion, with the aim of inspiring further comparative examination of other pressing human rights issues
  • S Fredman, 'Direct and Indirect Discrimination: Is there still a divide?' in Hugh Collins; Tarunabh Khaitan (ed), Foundations of Indirect Discrimination Law (Bloomsbury 2018)
    In principle, the divide between direct and indirect discrimination is vivid. Yet recent developments in the jurisprudence of the courts in the US, the UK and Canada make it increasingly difficult to situate this divide. This raises the question as to why the interaction between the two concepts remains so tense and conflictual. Even more so, why has the UK address the tension by moving direct discrimination into an effects based mould, while the US jurisprudence tends to push disparate impact into a treatment-based mould. This chapter argues that there are four common themes. The first is a strong allegiance to a symmetric notion of equality and an aversion to affirmative action. The second is a continued attachment to an individualised notion of liability. Third there is an ambiguity as to the aims of an effects based test. Finally, not enough attention is paid to remedies and the ways in which discrimination should be overcome. The chapter examines these themes by comparing the case law in the US and the UK. The final section briefly canvasses possibilities of diluting or moving beyond the distinction.
  • L Lazarus, 'Doing Violence to the Rule of Law' (2018) Douglas McK Brown Lecture, Peter Allard School of Law, University of British Columbia
    This lecture is based on ongoing work towards the completion of my book Securing Legality. It demonstrates a paradigmatic shift towards the securitization of the rule of law in international practice. It showcases a comprehensive analysis of documentation referring to the rule of law within both international agencies and domestic government departments. It also refers to interviews conducted with actors who are responsible for rule of law work within these agencies. These interviews explore and test the analysis of the primary sources produced by their agencies. At the end of the lecture I address the theoretical concerns raised by this move towards a securitized conception of the rule of law, and some scholarly responses in this field.
  • D. Akande, 'International Organizations' in Evans (ed), International Law (Oxford University Press 2018)
    This chapter examines the legal framework governing international organizations. It begins with an examination of the history, role and nature of international organizations. It is argued in the chapter that although the constituent instruments and practices of each organization differ, there are common legal principles which apply to international organizations. The chapter focuses on the identification and exploration of those common legal principles. There is an examination of the manner in which international organizations acquire legal personality in international and domestic law and the consequences of that legal personality. There is also discussion of the manner in which treaties establishing international organizations are interpreted and how this differs from ordinary treaty interpretation. The legal and decision-making competences of international organizations are considered as are the responsibility of international organizations and their privileges and immunities. Finally, the chapter examines the structure and powers of what is probably the leading international organization—the United Nations (UN).
    ISBN: 9780198791836
  • S Fredman, 'Reimagining power relations: Hierarchies of disadvantage and affirmative action' in Penelope Andrews, Dennis Davis and Tabeth Masengu (eds), A Warrior for Justice: Essays in Honour of Dikgang Moseneke (Juta 2018)
  • S Fredman, 'Reviving Indirect Discrimination: Essop v Home Office' in D. Clarry (ed), The UK Supreme Court Yearbook Vol 8 2016-2017 Legal Year (Appellate Press 2018)
  • D. Akande and A. Tzanakopoulos, 'Treaty Law and ICC Jurisdiction over the Crime of Aggression' (2018) 29 European Journal of International Law 939
    DOI: https://doi.org/10.1093/ejil/chy059
    This article examines the question of who will be subject to International Criminal Court (ICC) jurisdiction with respect to the crime of aggression. One of the most contentious questions in the negotiations regarding the crime of aggression was whether the Court would have jurisdiction over nationals of a state that does not ratify the Kampala Amendments, but which is alleged to have committed an act of aggression on the territory of a state that has accepted the aggression amendments. The question is examined here against the background of the rules in the law of treaties regarding amendments and treaty interpretation. The article considers the legal effect that the resolution adopted by the ICC Assembly of States Parties in New York in December 2017 will have in determining this jurisdictional question. A resolution of an international conference adopted by consensus can, in principle, be regarded as subsequent practice or a subsequent agreement of the parties to the Rome Statute that establishes the authentic interpretation of the Statute within the meaning of the Vienna Convention on the Law of Treaties. It is argued, however, that this particular resolution does not, in itself, provide the definitive answer on the correct interpretation of the Rome Statute. Despite being adopted by consensus, and despite being highly relevant for the interpretation of the Rome Statute and the Kampala Amendments, this resolution does not necessarily amount to a subsequent agreement or subsequent practice that the Court is legally bound to follow. Nevertheless, it is further argued that the position adopted in New York with regard to the jurisdiction of the Court over nationals of states parties that do not ratify the Kampala Amendments is the correct legal position and the one that the Court ought to adopt. The answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala, or even in New York. We argue that the key to addressing this issue is to understand how the amendment provisions of the Rome Statute work in conjunction with basic principles of the law of treaties.
  • D. Akande and Emanuela-Chiara Gillard, 'Humanitarian Actors’ Engagement with Accountability Mechanisms in Situations of Armed Conflict' (2017) 2016 Anuário Português De Direito Internacional 105
  • D. Akande and Emanuela Chiara-Gillard, 'Promoting Compliance with the Rules Regulating Humanitarian Relief Operations in Armed Conflict: Some Challenges' (2017) 50 Israel Law Review 119
    DOI: https://doi.org/10.1017/S0021223717000048
    In recent years, the increasingly frequent and, in certain contexts, extremely severe impediments to the provision of humanitarian assistance to civilians in need have focused attention on how to enhance compliance with the rules of international humanitarian law (IHL) that regulate humanitarian relief operations. Efforts to hold accountable parties to armed conflict and persons responsible for unlawfully impeding humanitarian relief operations face the challenge that the underlying rules give parties latitude in how to implement the central obligation to allow and facilitate the rapid and unimpeded passage of humanitarian supplies, equipment and personnel. This article outlines the rules of IHL regulating humanitarian relief operations and highlights the difficulties, in the majority of situations, of determining whether they have been violated. It then presents current endeavours to promote accountability. It concludes with some reflections on whether the threat of accountability is the most effective way of enhancing compliance with this area of IHL, at least while efforts are under way to negotiate access.
  • D. Akande and Antonios Tzanakopoulos, 'The Crime of Aggression in the ICC and State Responsibility' (2017) 58 Harvard international law Journal Online 33
    This is a short piece which discusses the implications of the ICC exercising jurisdiction over the crime of aggression for the responsibility of states.

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