Articles, book chapters & books by Ioana Cismas
in Morten Bergsmo and Kishan Manocha (editors), Religion, Hateful Expression and Violence, TOAEP, Brussels , 2023
This chapter engages in a reflexive effort to unearth and problematize preliminary assumptions ab... more This chapter engages in a reflexive effort to unearth and problematize preliminary assumptions about the concepts employed in international legal scholarship and practice, in encounters with religions, with the aim of providing a more holistic understanding of the relevance of international law to religious leaders.
in H. Bhakuni and L. Miotto (eds.), Justice in Global Health: New Perspectives and Current Issues (New York: Routledge, 2023), pp. 82 – 110., 2023
Noma is a gangrenous disease that affects around 140,000 young children each year. The disease ha... more Noma is a gangrenous disease that affects around 140,000 young children each year. The disease has an estimated mortality rate of up to 90%. This chapter examines framings of noma that have been prominent over the last four decades: the medicalised and humanitarian frames, as well as the human rights and neglected tropical disease frames. The analytical focus is on the framers (who?), the purpose of the faming (why?), and the outcome sought or accomplished (what?) in respect to the identified frames. The chapter's aim is to illustrate how the neglected tropical disease and human rights frames have, and could be, leveraged to enhance advocacy and generate policy change at international level and on the ground to tackle noma and support survivors.
Yearbook of International Humanitarian Law Vol. 22 (2020 forthcoming), 2020
It is undeniable that the effectiveness of international humanitarian law (IHL) faces challenges ... more It is undeniable that the effectiveness of international humanitarian law (IHL) faces challenges from different quarters. To address these, humanitarian organizations have, in the main, pursued a direct engagement strategy with the parties to a conflict. Although this has remained the dominant strategy to date, in the last two decades the humanitarian sector has, on an ad hoc basis and without the benefit of a solid evidence base, engaged other societal actors identified as having the potential to influence parties to armed conflict, and among them religious leaders. This chapter addresses the role of these leaders in influencing compliance (or lack thereof) with IHL by States and non-State armed groups. In particular, two issues are explored: 1) what makes religious leaders influential among their constituencies?, and 2) how can they be useful actors to increase respect for IHL in armed conflict?
J. Temperman, J. Gunn & M. Evans (eds) The European Court of Human Rights and the Freedom of Religion or Belief: The 25 Years since Kokkinakis , 2019
James Summers and Alex Gough (eds) Non-State Actors and International Obligations: Creation, Evolution and Enforcement (Brill 2018), 224-260, 2018
Marie Juul Petersen and Turan Kayaoglu (eds), The Organization of Islamic Cooperation and Human Rights (University of Pennsylvania Press, 2019), 2019
Chapter published in Roger Duthie and Paul Seils, eds., Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies (New York: ICTJ, 2017), pp. 302-343.
This chapter explores the relation between religious actors and transitional justice. It finds th... more This chapter explores the relation between religious actors and transitional justice. It finds that the roles of religious actors in repression or conflict, as victims of, complicit in, or perpetrators of abuse, will likely affect the roles they assume in transitional justice processes as advocates, agents, or spoilers thereof or, indeed, their absence from such initiatives. The linking of the period to be redressed to the period of redress also suggests that the roles of religious entities in the former may influence the form of justice they pursue and the precise measures they advocate, which may include truth-seeking initiatives, but also criminal prosecutions, vetting, and property restitution. This linking of periods also reveals that, in addition to a religious logic of forgiveness, more mundane aspects, such as economic and political interests, may drive religious actors’ actions in transitional justice contexts. The chapter concludes that religious actors are called upon to participate in state-sanctioned transitional justice because of their capacity to lend their ‘special’ legitimacy to such initiatives; however, at stake is not a one-sided process of legitimation, but a dual process whereby religious actors are perceived as legitimate, or not, by reference not only to their religious integrity but also in terms of their own adherence to human rights and humanitarian law standards. In other words, it is the accountability of religious actors which sets the limit of their involvement in transitional justice as a measure of effectiveness.
Elaine E. Sutherland and Lesley-Anne Barnes Macfarlane (eds.) Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (Cambridge University Press, 2016), 310-325., 2016
Anchored in the wider debate on the relation between the child’s best interests and religion, the... more Anchored in the wider debate on the relation between the child’s best interests and religion, the chapter inquires whether the Holy See—a religious actor, party to the Convention on the Rights of the Child (CRC)—has best interests obligations, and whether it acknowledges these in its actions and norms intended to address clerical child sexual abuse. The study challenges the self-portrayed dual personality of the Holy See qua government of the Vatican and qua government of the Church; instead, it posits that the Holy See and the Vatican form a construct ‘clothed’ with state-like resemblance, which therefore enjoys the privileges of states and incurs correlative obligations. By drawing on doctrinal and judicial developments in the area of extraterritoriality, and critically examining the 2014 Concluding observations of the CRC Committee, the chapter shows that the Holy See’s child rights obligations, including those related to the child’s best interests, do not stop at the tiny borders of the Vatican. Lastly, it examines whether the Holy See assumes its best interests obligations and their extraterritorial reach, and reveals a surprising dissonance between the actor’s discourse on the one hand, and recent legislative and institutional practice on the other.
Cibo e diritto: dalla Dichiarazione Universale alla Carta di Milano
Looking back at the mandates of the two former UN Special Rapporteurs on the right to food – Jean... more Looking back at the mandates of the two former UN Special Rapporteurs on the right to food – Jean Ziegler (2000-2008) and Olivier de Schutter (2008-2014) – and at the work undertaken by the current mandate-holder – Hilal Elver, since 2014 – one can observe that much of their efforts are devoted to the goal of clarification. In turn, this clarification serves to legitimatize the right to food in governmental circles, among civil society organizations (CSOs) and other non-state actors, and in international law more broadly. This contribution will first provide a macro picture and a brief history of Special Procedures in the UN system with focus on those Special Procedures that hold economic, social and cultural rights (ESC rights) mandates. The aim of this section is to emphasize that clarification is a common endeavour of socio-economic Special Procedures, including thus of the UN Special Rapporteur on the right to food. The second part of this study will discuss the clarification work of the former and current right to food mandate-holders and the two forms which this work takes: demythification of the right to food and practical guidance. Lastly, the role of Special Rapporteurs in the process of legitimation of the right to food will be addressed.
Being anchored in the broader policy debate on the effectiveness of international human rights st... more Being anchored in the broader policy debate on the effectiveness of international human rights standards on the ground, this chapter inquires whether human rights carry any relevance in the Cambodian landscape of contestation of large-scale land acquisitions (LSLAs) and long-term leases. The chapter first establishes that substantive and procedural obligations relevant to LSLAs result from Cambodia’s ratification of human rights treaties. It then examines whether and to what extent this normative framework informs the acts and actions of the government in relation to land transactions, and the strategies employed by affected communities. The study relies on legal analysis to unearth tensions between processes set in motion by land laws and shortcomings in their implementation in terms of transparency and participation, accountability and redress, and identification of vulnerable groups. It also draws on desk and field research in a rural and an urban area of Cambodia to examine the mobilisation strategies employed by the two communities affected by LSLA-related forced evictions; the focus is on processes of appropriation and adaptation of human rights by affected local communities, known as ‘vernacularization’. The chapter shows that the rural-urban spatiality, a constructed element, is of relevance in explaining the different configurations of social activism occurring in each setting and these configurations’ use of human rights. It finds that, contrary to similarly LSLA-affected rural citizens, urban dwellers made extensive use of human rights language and human rights mechanisms to challenge their forced evictions and also achieved a certain success. Furthermore, the chapter shows that deficient governmental practice, in particular in the area of information and access to justice may play a role in entertaining this divided spatiality, especially by incapacitating the vernacularization of human rights in rural settings.
Boston University International Law Journal, Vol. 34, No. 1, 2016 Forthcoming
Hobby Lobby, a company that should be merely an individual’s DIY-dream, has become a lawyer’s con... more Hobby Lobby, a company that should be merely an individual’s DIY-dream, has become a lawyer’s conundrum. To be precise, this puzzle emerges from the United States Supreme Court (SCOTUS) holding in Burwell v. Hobby Lobby Stores (Hobby Lobby) that the contraceptive mandate in the Patient Protection and Affordable Care Act (ACA) violated the Religious Freedom Restoration Act of 1993 (RFRA) because it substantially burdens the religious beliefs of the three closely held corporations (CHCs) in the case. The Court thus placed Hobby Lobby Stores (Hobby Lobby), Mardel, and Conestoga Wood Specialty Corporation (Conestoga) at the intersection of two of the most thrilling social and legal debates of our times. Upon reading the Court’s decision, the lawyer — as well as the sensible hobby bricoleur — would wonder how far corporate “human” rights can and should go and whether such rights can and should be correlated to responsibilities. They would also consider a twisted variant of the separation of church and state question, and inquire to what extent the state should protect human rights from religious interference.
The judgment has important implications for human rights, in particular by weakening the protection of reproductive and healthcare rights, and by posing possible threats to freedom from discrimination based on gender and sexual orientation. While the article engages with some of these consequences, its prime aim is to explore a more basic aspect: the type of entity which can hold and exercise religious views. It is this aspect which we identify as the source of potential socio-legal conflict in the United States. The analysis will compare SCOTUS’ reasoning on corporate form, profit-making objective, and limitations to religious exercise in Hobby Lobby to relevant jurisprudence of the European Convention on Human Rights (ECHR) mechanisms — the European Court of Human Rights (ECtHR) and the European Commission on Human Rights (EComHR). The comparative study therefore will allow us to provide answers to core questions: Whose right and who’s right? In other words, does a corporate right to exercise religion exist and is SCOTUS right in recognizing such protection to for-profit entities or the ECtHR in denying it.
Looking for inspiration outside the realm of US case law may prove a delicate endeavor, given the different structure of the ECtHR (as a supra-national court overseeing 47 sovereign states), and the reticence of certain circles in the US to recognize any comparative value to be gained from foreign judgments. Despite these caveats, the parallel between the two jurisdictions should provide a fuller account of how the interpretations on corporate religious freedom differ, and avenues for alternative interpretation.
This Practitioner’s Comment recognizes that continuous normative development, increased justiciab... more This Practitioner’s Comment recognizes that continuous normative development, increased justiciability and incessant affirmation is integral to a better protection of the right to food, and of other human rights, be they economic, social and cultural rights, or indeed civil and political ones. At the same, it argues that we have reached the stage where it is time to shed the complex of normative inferiority, the obsession with establishing a bourgeois pedigree for economic, social and cultural rights, and the defensive stance when confronted with cost and intrusiveness arguments. Shaping law and policy so as to remove discrimination and target social inequalities, should be the new plea for the human rights movement.
International Legal Materials, Vol. 53, No. 3 (2014)
In May 2014, the Committee on the Rights of the Child, an expert body tasked with monitoring the ... more In May 2014, the Committee on the Rights of the Child, an expert body tasked with monitoring the implementation of the Convention on the Rights of the Child (CRC) by its state parties, issued its concluding observations on the second periodic report of the Holy See. The observations mark a definitive turning point in the approach of the treaty body concerning the nature of obligations which the Holy See incurs under the Convention; shed light on the concrete modalities which the Holy See could embrace to perform these obligations; and tie into the broader discussion on the extraterritorial reach of human rights treaties, in casu, the CRC.
This book assesses whether a new category of actors - religious actors - has been constructed wit... more This book assesses whether a new category of actors - religious actors - has been constructed within international law. Religious actors, through their interpretations of the religion(s) they are associated with, uphold and promote, or indeed may transform, potentially oppressive structures or discriminatory patterns. This study moves beyond the concern that religious texts and practices may be incompatible with international law, to provide an innovative analysis of how religious actors themselves are accountable under international law for the interpretations they choose to put forward.
The book defines religious actors as comprising religious states, international organizations, and non-state entities that assume the role of interpreting religion and so claim a 'special' legitimacy anchored in tradition or charisma. Cutting across the state / non-state divide, this definition allows the full remit of religious bodies to be investigated. It analyses the crucial question of whether religious actors do in fact operate under different international legal norms to non-religious states, international organizations, or companies. To that end, the Holy See-Vatican, the Organization of Islamic Cooperation, and churches and religious organizations under the European Convention on Human Rights regime are examined in detail as case studies.
The study ultimately establishes that religious actors cannot be seen to form an autonomous legal category under international law: they do not enjoy special or exclusive rights, nor incur lesser obligations, when compared to their respective non-religious peers. Going forward, it concludes that a process of two-sided legitimation may be at stake: religious actors will need to provide evidence for the legality of their religious interpretations to strengthen their legitimacy, and international law itself may benefit from religious actors fostering its legitimacy in different cultural contexts.
Table of contents
Introduction - The Shift in Focus
Part I - From Religion and International Law to Religious Actors in International Law
1: Religion and International Law Revisited
2: Religious Actors as an Analytical Category
Part II - Operationalizing the Analytical Category of Religious Actors
3: Religious Organizations Under the European Convention Regime
4: The Holy See - Vatican State-Like Construct
5: The Organization of Islamic Cooperation as Interpreter of Human Rights in the Context of Islam
Conclusions - Accountability and Legitimacy
Eibe Riedel, Gilles Giacca, and Christophe Golay (eds), Economic, Social, and Cultural Rights in International Law. Contemporary Issues and Challenges, (Oxford: Oxford University Press, 2014), pp. 448-472 , 2014
Drawing on the concept of intersectionality rooted in gender studies, the chapter examines the va... more Drawing on the concept of intersectionality rooted in gender studies, the chapter examines the various interactions of economic, social and cultural (ESC) rights, on one hand, and civil and political (CP) rights, on the other. It explores instances at the normative-theoretical level, in litigation and monitoring practice, where protection of one ‘category’ of rights is sought by appeal to the other. The chapter traces the advent of the paradigm of the ‘categories/generations of rights’ to the Cold War period and the role of the interdependence principle, arguably an intersectional device, in managing the formal separation of human rights into two distinct Covenants. While acknowledging the progress of the past two decades in re-positioning ESC rights on the same value plane as CP rights, the analysis argues for the continued utility of intersectionality as a tool for advancing not only ESC rights, but also CP rights. At the same time, the examination reveals situations in which the rights regime is weakened because of an over-reliance on intersectional litigation strategies, given the impossibility or unwillingness to directly adjudicate ESC rights.
21 Currents: International Trade Law Journal 2 (2013)
In recent years, the locus of trade appears to have shifted from the multilateral stage to the bi... more In recent years, the locus of trade appears to have shifted from the multilateral stage to the bilateral and plurilateral levels. This article focuses on the integration of human rights in bilateral and plurilateral free trade agreements as a complementary strategy to achieving a coherent international law. It draws on Switzerland as a case study, in reference to its bilateral trade relations and as part of the European Free Trade Association (EFTA). The study puts forward a mix of arguments supporting the integration of human rights in Swiss free trade agreements: international law impetuses stemming from the need to preserve a coherent international legal system and uphold the human rights obligations of all trade partners, Switzerland’s pledge to ensure coherence of its policies, and economic arguments purporting to strengthen economic integration and to reduce the costs for business.
5 International Legal Materials 6 (2011)
In June 2011, the Council of Foreign Ministers of the Organization of Islamic Cooperation (OIC) a... more In June 2011, the Council of Foreign Ministers of the Organization of Islamic Cooperation (OIC) adopted the Statute of the OIC Independent Permanent Human Rights Commission. According to the OIC Secretary General, the Statute attempts 'to strike a delicate balance' between international human rights instruments and Islamic ones, i.e. the Cairo Declaration on Human Rights in Islam and the Covenant of the Rights of the Child in Islam. This note analyzes the provisions of the Statute while comparing its mandate and procedures to those of other international and regional human rights mechanisms. It explores the potential role of the Commission in the context-sensitive application of international human rights standards and the interpretation of sharia.
15 The International Journal of Human Rights 2 (2011)
This article analyses the impact that some of the United Nations special procedures, namely those... more This article analyses the impact that some of the United Nations special procedures, namely those focusing on economic social and cultural rights (ESC rights), have upon the development of international human rights law, in particular through clarifying the normative content of the rights and the development of soft-law instruments. It also examines the impact of the ESC rights mandate-holders in implementing ESC rights through promotion activities, protection work and country missions and explores modalities for improvement.
2 Goettingen Journal of International Law 5 (2010)
Since 17 February 2008 - the day of Kosovo’s declaration of independence from Serbia - it has bec... more Since 17 February 2008 - the day of Kosovo’s declaration of independence from Serbia - it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. This article carves out the place of secession in international law by appeal to fundamental principles and legal doctrine. It also explores major socio-political aspects in Kosovo’s history, from the battle of Kosovo Polje in 1389 to Security Council resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). By following these two analytical paths Kosovo is exposed as a case of remedial secession and thus as a potential legal precedent. While the elements of remedial secession are gathered, it is argued that states deprived this instance of practice of its precedential value and made it a legally insignificant act. In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism.
Montreal: Rights and Democracy, 2010
Uploads
Articles, book chapters & books by Ioana Cismas
The judgment has important implications for human rights, in particular by weakening the protection of reproductive and healthcare rights, and by posing possible threats to freedom from discrimination based on gender and sexual orientation. While the article engages with some of these consequences, its prime aim is to explore a more basic aspect: the type of entity which can hold and exercise religious views. It is this aspect which we identify as the source of potential socio-legal conflict in the United States. The analysis will compare SCOTUS’ reasoning on corporate form, profit-making objective, and limitations to religious exercise in Hobby Lobby to relevant jurisprudence of the European Convention on Human Rights (ECHR) mechanisms — the European Court of Human Rights (ECtHR) and the European Commission on Human Rights (EComHR). The comparative study therefore will allow us to provide answers to core questions: Whose right and who’s right? In other words, does a corporate right to exercise religion exist and is SCOTUS right in recognizing such protection to for-profit entities or the ECtHR in denying it.
Looking for inspiration outside the realm of US case law may prove a delicate endeavor, given the different structure of the ECtHR (as a supra-national court overseeing 47 sovereign states), and the reticence of certain circles in the US to recognize any comparative value to be gained from foreign judgments. Despite these caveats, the parallel between the two jurisdictions should provide a fuller account of how the interpretations on corporate religious freedom differ, and avenues for alternative interpretation.
The book defines religious actors as comprising religious states, international organizations, and non-state entities that assume the role of interpreting religion and so claim a 'special' legitimacy anchored in tradition or charisma. Cutting across the state / non-state divide, this definition allows the full remit of religious bodies to be investigated. It analyses the crucial question of whether religious actors do in fact operate under different international legal norms to non-religious states, international organizations, or companies. To that end, the Holy See-Vatican, the Organization of Islamic Cooperation, and churches and religious organizations under the European Convention on Human Rights regime are examined in detail as case studies.
The study ultimately establishes that religious actors cannot be seen to form an autonomous legal category under international law: they do not enjoy special or exclusive rights, nor incur lesser obligations, when compared to their respective non-religious peers. Going forward, it concludes that a process of two-sided legitimation may be at stake: religious actors will need to provide evidence for the legality of their religious interpretations to strengthen their legitimacy, and international law itself may benefit from religious actors fostering its legitimacy in different cultural contexts.
Table of contents
Introduction - The Shift in Focus
Part I - From Religion and International Law to Religious Actors in International Law
1: Religion and International Law Revisited
2: Religious Actors as an Analytical Category
Part II - Operationalizing the Analytical Category of Religious Actors
3: Religious Organizations Under the European Convention Regime
4: The Holy See - Vatican State-Like Construct
5: The Organization of Islamic Cooperation as Interpreter of Human Rights in the Context of Islam
Conclusions - Accountability and Legitimacy
The judgment has important implications for human rights, in particular by weakening the protection of reproductive and healthcare rights, and by posing possible threats to freedom from discrimination based on gender and sexual orientation. While the article engages with some of these consequences, its prime aim is to explore a more basic aspect: the type of entity which can hold and exercise religious views. It is this aspect which we identify as the source of potential socio-legal conflict in the United States. The analysis will compare SCOTUS’ reasoning on corporate form, profit-making objective, and limitations to religious exercise in Hobby Lobby to relevant jurisprudence of the European Convention on Human Rights (ECHR) mechanisms — the European Court of Human Rights (ECtHR) and the European Commission on Human Rights (EComHR). The comparative study therefore will allow us to provide answers to core questions: Whose right and who’s right? In other words, does a corporate right to exercise religion exist and is SCOTUS right in recognizing such protection to for-profit entities or the ECtHR in denying it.
Looking for inspiration outside the realm of US case law may prove a delicate endeavor, given the different structure of the ECtHR (as a supra-national court overseeing 47 sovereign states), and the reticence of certain circles in the US to recognize any comparative value to be gained from foreign judgments. Despite these caveats, the parallel between the two jurisdictions should provide a fuller account of how the interpretations on corporate religious freedom differ, and avenues for alternative interpretation.
The book defines religious actors as comprising religious states, international organizations, and non-state entities that assume the role of interpreting religion and so claim a 'special' legitimacy anchored in tradition or charisma. Cutting across the state / non-state divide, this definition allows the full remit of religious bodies to be investigated. It analyses the crucial question of whether religious actors do in fact operate under different international legal norms to non-religious states, international organizations, or companies. To that end, the Holy See-Vatican, the Organization of Islamic Cooperation, and churches and religious organizations under the European Convention on Human Rights regime are examined in detail as case studies.
The study ultimately establishes that religious actors cannot be seen to form an autonomous legal category under international law: they do not enjoy special or exclusive rights, nor incur lesser obligations, when compared to their respective non-religious peers. Going forward, it concludes that a process of two-sided legitimation may be at stake: religious actors will need to provide evidence for the legality of their religious interpretations to strengthen their legitimacy, and international law itself may benefit from religious actors fostering its legitimacy in different cultural contexts.
Table of contents
Introduction - The Shift in Focus
Part I - From Religion and International Law to Religious Actors in International Law
1: Religion and International Law Revisited
2: Religious Actors as an Analytical Category
Part II - Operationalizing the Analytical Category of Religious Actors
3: Religious Organizations Under the European Convention Regime
4: The Holy See - Vatican State-Like Construct
5: The Organization of Islamic Cooperation as Interpreter of Human Rights in the Context of Islam
Conclusions - Accountability and Legitimacy
The project addressed the following overarching research question: How do religious leaders influence the behaviour of State and non-State parties to armed conflicts and can their religious interpretations lead to humanitarian norms-compliance? The answer is a resounding yes – the study has established that religious leaders can and do influence armed actors’ compliance with international humanitarian law and international human rights law. In this document, we explain systematically the relevance of these findings for humanitarians and donors.
Part I answers a set of fundamental questions and provides concrete examples based on primary data collected in over 250 interviews with religious leaders, humanitarian practitioners, scholars, armed actors, and other stakeholders, and draws on an extensive review of interdisciplinary literature.
Part II tackles the question How to engage? Conflict mapping, the mapping of influential religious leaders in specific contexts, what approaches to engagement to pursue, what topics could be chosen, what competencies are needed, and how outcomes could be measured are all addressed.