Joseph Zand | Inönü üniversitesi (original) (raw)
Papers by Joseph Zand
This paper critically examines the attitude of the Council of Europe through the jurisprudence of... more This paper critically examines the attitude of the Council of Europe through the jurisprudence of the European Court of Human Rights in relation to New Religious Movements (NRMs) sometimes referred to as ‘cults’. On the whole, in contemporary Europe, NMRs seem to have been particularly vulnerable to persecution especially since the collapse of the Soviet Empire and the subsequent integration of many Eastern European states into the Council of Europe. Even though the Strasbourg organs initially limited religious freedoms to the individual, it now accepts that a religious organization also enjoys the right to religious freedom as representative of its members. In spite of this, by and large, NRMs have been denied recognition as bona fide religious institutions in Europe. This is mainly due to the fact that the European Court allows its member states a wide margin of appreciation in such matters. The Church of Scientology has been used as an example to illustrate the challenges faced b...
Indiana International & Comparative Law Review, Oct 11, 2017
The European Convention on Human Rights, for the most part, guarantees civil and political rights... more The European Convention on Human Rights, for the most part, guarantees civil and political rights. 1 It is a unique international instrument that provides what is widely regarded as the most effective trans-national judicial process for complaints brought by citizens and organizations against their respective governments. 2 The aim of this article is to contribute to the continuing debate on the notion of democracy according to the European Convention on Human Rights. Not only has the Convention been a standard-setter in Europe, but it is also a source of inspiration in promotion of democracy and democratic values for other regions of the world. With this in mind, the article considers the appropriate elements of the Convention which directly concerns democratic values. To that end, the article critically examines the relevant Articles of the Convention on the notion of democracy as well as on the jurisprudence of the European Court of Human Rights. Furthermore, in recent decades, the Convention has ma de a telling contribution in relatıon to transition to peace and democracy in the former communist Eastern European states. KEY WORDS: European Convention on Human Rights, European Court of Human rights and the Concept of democracy.
The laws of war were the first part of international law to be codified. Until the mid-nineteenth... more The laws of war were the first part of international law to be codified. Until the mid-nineteenth century the laws of war had existed in different form as today namely; in custom, in broad principles, in military manuals and the national laws as well as religious teachings. Although the laws regulating the conduct of hostilities were recognised in many early cultures, the theories of the laws of war are essentially considered " Eurocentric. " As a result of the creation of modern European state system in the seventeenth century the laws of war were the first branch of international law to be developed in any depth. Multiplicity of factors led to their re-statement and development in the second half of the nineteenth century. However, this article argues that contrary to the popular belief the development of this branch of international law was also influenced by some major civil wars too. The topic of civil war will be dealt with in chronological order with references made to some of the most important conflicts such as the American Civil War which have contributed to development of rules and regulations governing internal armed conflict and as a consequence to the laws of war.
This article will critically evaluate the jurisprudence of the European Court of Human Rights spe... more This article will critically evaluate the jurisprudence of the European Court of Human Rights specifically with regards to Article 15 of the European Convention on Human Rights and its development since its inception. There is no doubt that departure from normal human rights standards in certain circumstances is unavoidable. Provisions such as Article 15 of the Convention should be in place to protect the life and territorial integrity of a nation in times of war and other emergency situations. Article 15 incorporates, in effect, the principle of necessity common to all legal systems. It allows a government to derogate from the Convention standards in times of public emergency. This article will review the reasons for Article 15, the requirements of the right to derogate and the procedure of derogation. Further, it will consider the case of A and Others v. the United Kingdom which will indicate the new challenges that the European Court of Human Rights will have to address in the future.
This paper critically examines the attitude of the Council of Europe through the jurisprudence of... more This paper critically examines the attitude of the Council of Europe through the jurisprudence of the European Court of Human Rights in relation to New Religious Movements (NRMs) sometimes referred to as 'cults'. On the whole, in contemporary Europe, NMRs seem to have been particularly vulnerable to persecution especially since the collapse of the Soviet Empire and the subsequent integration of many Eastern European states into the Council of Europe. Even though the Strasbourg organs initially limited religious freedoms to the individual, it now accepts that a religious organization also enjoys the right to religious freedom as representative of its members. In spite of this, by and large, NRMs have been denied recognition as bona fide religious institutions in Europe. This is mainly due to the fact that the European Court allows its member states a wide margin of appreciation in such matters. The Church of Scientology has been used as an example to illustrate the challenges faced by such organizations striving for recognition. This paper also considers the approach adopted by the British courts which represent a more moderate and measured approach towards NRMs. Özet Bu çalışma Avrupa Konsey'inin bazen 'tarikatlar' olarak atfedilen Yeni Dini Hareketlere (YDH) ilişkin tutumunu Avrupa İnsan Hakları Mahkemesinin kazai içtihatları üzerinden eleştirisel olarak inceler. Bütününde YDHler, özellikle Sovyet İmparatorluğunun çöküşü ve ardından pek çok Doğu Avrupa Devletinin Avrupa Konseyi'ne katılmasından itibaren, çağdaş Avrupa'da bilhassa zulüm görmeye, saldırı ve tenkide karşı bilhassa korunmasız görünümdeydiler. Strazburg organları başlangıçta din özgürlüklerini bireysel düzeyde sınırlamış olsalar bile, bugün artık bir dini örgütün ayrıca üyelerinin temsilcisi olarak dini özgürlüklere dair haklardan yararlanabileceğini kabul etmektedir. Buna rağmen, genel olarak YDHler Avrupa'da hakiki (bona fide) dini kurumlar olarak tanınmaktan mahrum edilmiştir. Bu temel olarak Avrupa Mahkemesinin üye devletlere bu tür meselelerde geniş bir takdir hakkı vermesi yüzündendir. Scientology tarikatı, tanınmak çabası içerisinde olan bu tür örgütleri tarafından karşılaşılan zorlukları göstermek üzere bir örnek olarak kullanılmıştır. Bu makale ayrıca İngiliz Mahkemelerinin YDHlere karşı benimsediği daha ılımlı ve ölçülü bir yaklaşımı temsilleyen kazai tavrını da inceler.
Gender equality is one of the most contentious matters in the contemporary Turkish society. Unlik... more Gender equality is one of the most contentious matters in the contemporary Turkish society. Unlike in many other parts of the developed world, Turkish women still struggle to use their maiden name, as well as to pass it on to their children upon marriage. A woman's surname is of crucial importance to her identity. Despite the fact that Turkey is a part of the European Civil Law tradition and the Turkish Civil Code has a specific provision regarding women's surnames, Turkey has failed to grant its female population a choice in relation to their surname after marriage. The European Court of Human Rights has, in the past, censured Turkey on this very issue. The censure prompted Turkish lawmakers to accept an individual application mechanism before the Turkish Constitutional Court. This mechanism, however, does not guarantee gender equality or a choice for women to maintain their maiden name after marriage in Turkey. This article examines gender equality in Turkey through the problem of lack of right for wives to choose their marital surname upon marriage and exposes a gap between Turkey's domestic law practice and its international commitments by analyzing the case law of the Turkish judiciary and the European Court of Human Rights.
This paper critically examines the attitude of the Council of Europe through the jurisprudence of... more This paper critically examines the attitude of the Council of Europe through the jurisprudence of the European Court of Human Rights in relation to New Religious Movements (NRMs) sometimes referred to as ‘cults’. On the whole, in contemporary Europe, NMRs seem to have been particularly vulnerable to persecution especially since the collapse of the Soviet Empire and the subsequent integration of many Eastern European states into the Council of Europe. Even though the Strasbourg organs initially limited religious freedoms to the individual, it now accepts that a religious organization also enjoys the right to religious freedom as representative of its members. In spite of this, by and large, NRMs have been denied recognition as bona fide religious institutions in Europe. This is mainly due to the fact that the European Court allows its member states a wide margin of appreciation in such matters. The Church of Scientology has been used as an example to illustrate the challenges faced b...
Indiana International & Comparative Law Review, Oct 11, 2017
The European Convention on Human Rights, for the most part, guarantees civil and political rights... more The European Convention on Human Rights, for the most part, guarantees civil and political rights. 1 It is a unique international instrument that provides what is widely regarded as the most effective trans-national judicial process for complaints brought by citizens and organizations against their respective governments. 2 The aim of this article is to contribute to the continuing debate on the notion of democracy according to the European Convention on Human Rights. Not only has the Convention been a standard-setter in Europe, but it is also a source of inspiration in promotion of democracy and democratic values for other regions of the world. With this in mind, the article considers the appropriate elements of the Convention which directly concerns democratic values. To that end, the article critically examines the relevant Articles of the Convention on the notion of democracy as well as on the jurisprudence of the European Court of Human Rights. Furthermore, in recent decades, the Convention has ma de a telling contribution in relatıon to transition to peace and democracy in the former communist Eastern European states. KEY WORDS: European Convention on Human Rights, European Court of Human rights and the Concept of democracy.
The laws of war were the first part of international law to be codified. Until the mid-nineteenth... more The laws of war were the first part of international law to be codified. Until the mid-nineteenth century the laws of war had existed in different form as today namely; in custom, in broad principles, in military manuals and the national laws as well as religious teachings. Although the laws regulating the conduct of hostilities were recognised in many early cultures, the theories of the laws of war are essentially considered " Eurocentric. " As a result of the creation of modern European state system in the seventeenth century the laws of war were the first branch of international law to be developed in any depth. Multiplicity of factors led to their re-statement and development in the second half of the nineteenth century. However, this article argues that contrary to the popular belief the development of this branch of international law was also influenced by some major civil wars too. The topic of civil war will be dealt with in chronological order with references made to some of the most important conflicts such as the American Civil War which have contributed to development of rules and regulations governing internal armed conflict and as a consequence to the laws of war.
This article will critically evaluate the jurisprudence of the European Court of Human Rights spe... more This article will critically evaluate the jurisprudence of the European Court of Human Rights specifically with regards to Article 15 of the European Convention on Human Rights and its development since its inception. There is no doubt that departure from normal human rights standards in certain circumstances is unavoidable. Provisions such as Article 15 of the Convention should be in place to protect the life and territorial integrity of a nation in times of war and other emergency situations. Article 15 incorporates, in effect, the principle of necessity common to all legal systems. It allows a government to derogate from the Convention standards in times of public emergency. This article will review the reasons for Article 15, the requirements of the right to derogate and the procedure of derogation. Further, it will consider the case of A and Others v. the United Kingdom which will indicate the new challenges that the European Court of Human Rights will have to address in the future.
This paper critically examines the attitude of the Council of Europe through the jurisprudence of... more This paper critically examines the attitude of the Council of Europe through the jurisprudence of the European Court of Human Rights in relation to New Religious Movements (NRMs) sometimes referred to as 'cults'. On the whole, in contemporary Europe, NMRs seem to have been particularly vulnerable to persecution especially since the collapse of the Soviet Empire and the subsequent integration of many Eastern European states into the Council of Europe. Even though the Strasbourg organs initially limited religious freedoms to the individual, it now accepts that a religious organization also enjoys the right to religious freedom as representative of its members. In spite of this, by and large, NRMs have been denied recognition as bona fide religious institutions in Europe. This is mainly due to the fact that the European Court allows its member states a wide margin of appreciation in such matters. The Church of Scientology has been used as an example to illustrate the challenges faced by such organizations striving for recognition. This paper also considers the approach adopted by the British courts which represent a more moderate and measured approach towards NRMs. Özet Bu çalışma Avrupa Konsey'inin bazen 'tarikatlar' olarak atfedilen Yeni Dini Hareketlere (YDH) ilişkin tutumunu Avrupa İnsan Hakları Mahkemesinin kazai içtihatları üzerinden eleştirisel olarak inceler. Bütününde YDHler, özellikle Sovyet İmparatorluğunun çöküşü ve ardından pek çok Doğu Avrupa Devletinin Avrupa Konseyi'ne katılmasından itibaren, çağdaş Avrupa'da bilhassa zulüm görmeye, saldırı ve tenkide karşı bilhassa korunmasız görünümdeydiler. Strazburg organları başlangıçta din özgürlüklerini bireysel düzeyde sınırlamış olsalar bile, bugün artık bir dini örgütün ayrıca üyelerinin temsilcisi olarak dini özgürlüklere dair haklardan yararlanabileceğini kabul etmektedir. Buna rağmen, genel olarak YDHler Avrupa'da hakiki (bona fide) dini kurumlar olarak tanınmaktan mahrum edilmiştir. Bu temel olarak Avrupa Mahkemesinin üye devletlere bu tür meselelerde geniş bir takdir hakkı vermesi yüzündendir. Scientology tarikatı, tanınmak çabası içerisinde olan bu tür örgütleri tarafından karşılaşılan zorlukları göstermek üzere bir örnek olarak kullanılmıştır. Bu makale ayrıca İngiliz Mahkemelerinin YDHlere karşı benimsediği daha ılımlı ve ölçülü bir yaklaşımı temsilleyen kazai tavrını da inceler.
Gender equality is one of the most contentious matters in the contemporary Turkish society. Unlik... more Gender equality is one of the most contentious matters in the contemporary Turkish society. Unlike in many other parts of the developed world, Turkish women still struggle to use their maiden name, as well as to pass it on to their children upon marriage. A woman's surname is of crucial importance to her identity. Despite the fact that Turkey is a part of the European Civil Law tradition and the Turkish Civil Code has a specific provision regarding women's surnames, Turkey has failed to grant its female population a choice in relation to their surname after marriage. The European Court of Human Rights has, in the past, censured Turkey on this very issue. The censure prompted Turkish lawmakers to accept an individual application mechanism before the Turkish Constitutional Court. This mechanism, however, does not guarantee gender equality or a choice for women to maintain their maiden name after marriage in Turkey. This article examines gender equality in Turkey through the problem of lack of right for wives to choose their marital surname upon marriage and exposes a gap between Turkey's domestic law practice and its international commitments by analyzing the case law of the Turkish judiciary and the European Court of Human Rights.