Friday, February 26, 2010

Equality in the Line of Succession

Gender equality legislation is sweeping the world. Constitutions and laws have been recognized by women’s rights activists as important instruments through which decision-making, influence and power are organized and exercised. Since 1990, at least 110 countries around the globe have been engaged in writing new constitutions or major revisions of old ones. In many of these countries, issues of gender equality have been a central concern in the constitutional process. Among others, constitutional provisions concerning the structure of democratic government have led to important changes in women’s political representation. In a few western countries these changes even touched a very ancient and traditional institution of government which over the centuries has preferably been reserved for males, that is, the institution of monarchy.

Recent developments

In four European monarchies - Sweden, the Netherlands, Norway and Belgium - male preference in the order of royal succession was eliminated and changed to equal (or absolute) primogeniture in the 1980s and 1990s. Recently, in 2009, Denmark also changed to equal primogeniture. Two successive Danish parliaments voted in favour of a new royal succession law that allows a first-born child to one day ascend the throne regardless of whether it is a boy or a girl. The bill was then submitted to a successful referendum, a procedure necessary under the rules for change of the constitution.

Crown Princess Victoria of Sweden (picture)

Some other monarchies have recently considered changing royal succession to equal primogeniture. In the United Kingdom the Succession to the Crown Bill of 2004 was proposed in the House of Lords as a Private Member’s Bill by Labour peer Lord Dubs, but was withdrawn by him, after the Government said that it would block the Bill. With the birth of Infanta Leonor of Spain on 31 October 2005 to the Prince and Princess of Asturias, the Prime Minister of Spain Zapatero reaffirmed his government's intention to amend the Spanish constitution by introducing equal primogeniture. However, as succession to the Spanish Crown is codified explicitly in the constitution, its reform madates an amendment to the constitution, a complicated and time-consuming process. As the current line of succession will not be affected by the new succession law, there will be plenty of time before a constitutional amendment needs to be enacted. In July 2006, the Nepalese government proposed adopting equal primogeniture, but the monarchy was abolished in 2008.

Gender and succession to the throne

In a heriditary monarchy the order of succession determines who becomes the new monarch when the incumbent sovereign dies or abdicates. Such orders of succession generally specify a selection process, a formula or algorithm, by law or tradition, which is applied to indicate which relative of the previous monarch, or other person, has the strongest claim to succeed, and will therefore assume the throne when the vacancy occurs. Constitutions, statutes, house laws, and norms may regulate the sequence and eligibility of potential successors to the throne.
Historically, there have been various systems of succession, mainly revolving around the question of whether succession is limited only to males, or if females are also eligible to succeed or to transmit the succession rights to their male descendants. The preference for males existing in most systems comes mostly from the perceived nature of the tasks and role of the monarch, that is, being a warrior and a military commander. An alternative theory posits that the preference for males arose out of a desire to maximize reproductive success. It was thought that because of a sexual double standard, in which males were able to produce illegitimate children as well as legitimate children, a son would ultimately increase one's posterity more than a daughter.

Current Queens regnant of the world : Elizabeth II of the United Kingdom, Margrethe II of Denmark, Beatrix of the Netherlands

But times have changed. With the progressive advancement of women’s rights in today’s world our views have altered. The ancient and traditional institution of monarchy is subject to constitutional change. Equal or absolute primogeniture, a form of primogeniture not practiced by any modern monarchy before 1980, is advancing.

Peace Palace Library catalogue

- systematic index: human rights, heads of state and governments, succession to the throne

- subject headings: equality, women, gender, human rights, heads of state, monarchy, succession to the crown, royal families, constitutional law

Recommended books and articles

CHINKIN, C., F. BUTEGWA and T. JOHNSON, Gender Mainstreaming in Legal and Constitutional Affairs : a Reference Manual for Governments and Other Stakeholders, London : Commonwealth Secretariat, 2001, 102 p [1]

IRVING, H., Gender and the Constitution : Equity and Agency in Comparative Constitutional Design, New York [etc.] : Cambridge University Press, 2008, VIII, 264 p [2]

LYON, A., "The Place of Women in European Royal Succession in the Middle Ages", 27 Liverpool Law Review 3, pp. 361-393 [3]

WILLIAMS, S.H. (ed.), Constituting Equality : Gender Equality and Comparative Constitutional Law, Cambridge [etc.] : Cambridge University Press, 2009, XV, 362 p [4]


Order of Succession in the Belgian Constitution [english] [french]

Order of Succession in the Dutch Constitution [english] [french]

Order of Succession in the Norwegian Constitution [english] [french]

Swedish Act of Succession [english] [french]

Thursday, February 25, 2010

Google in trouble?

At 19th February Google was facing its opponents in a New York court over long-delayed plans to create the world's largest online library, under the name Google Books. The fairness hearing has been set up to listen to arguments for and against a controversial deal -- the Google Book Search Copyright Class Action Settlement -- between Google and US authors and publishers. US Dictrict Judge Chin has read more than 500 submissions related to the $125m (£77m) settlement that would set up a book rights registry to pay authors and publishers compensation in return for their work being scanned and digitised. At the start of proceedings in New York, Judge Chin said "to end the suspense, I'm not going to rule today. There is just too much to digest. I have an open mind." Besides, an additional 6,500 claims are in progress.

Google informs on their website of the proposed Settlement of a class action lawsuit brought by authors and publishers, claiming that Google has violated their copyrights and those of other Rightsholders of Books and Inserts (click for definitions), by scanning their Books, creating an electronic database and displaying short excerpts without the permission of the copyright holders. Google denies the claims.

However, critics say the pact would hand the search giant a monopoly over online books sales.

Google's original plan to digitise millions of books worldwide first ran into trouble in 2004 when the Authors Guild of America and the Association of American Publishers sued over "massive copyright infringement".

December last year, a Paris court found Google guilty of infringement for exposing fragments of the scanned books online. Google doesn't allow users to actually access or view the entire books, rather it enables them to search the contents and displays short excerpts of the portion of the text containing the query. Still, the French publisher demanded that it be paid for the content and, in the original claim La Martiniere, the French Publishers' Association and authors' group SGDL, the parties who filed the lawsuit, asked for damages of €15 million for the crime. The judge found in the plaintiff's favor, but the damages issued fell way short of the demands: a €300,000 fine. However, on top of the initial fine, Google will also have to pay an additional €10,000 for every day it stores the scanned books from now on.

Google is facing a preliminary anti-monopoly probe by the European Commission into its dominant position in online browsing and digital advertising. Google revealed at Wednesday that the commission has sent out formal questionnaires seeking information about complaints from three firms – the British price comparison site Foundem, a French legal search engine called eJustice and a shopping site, Ciao, which is owned by Microsoft.

In the process of creating a worldwide library, Google Books, the library access might turn out less global than many are hoping for. Users could see their access to digitalised books limited by their geographical location. Geographic limitations on user access would allow Google to pay heed to copyright issues that can vary from country to country. The technology may also be used to control access to certain books that are illegal in specific countries.

Relevant articles / sources:

Books and articles in Peace Palace Library catalogue:

Monday, February 22, 2010

European Court of Human Rights Reform

On Friday, 19 February, at the Ministerial Conference on the future of the European Court of Human Rights (ECtHR) in Interlaken, Switzerland, the 47 member states of the Council of Europe issued a joint declaration (Interlaken Declaration [PDF]) on future reforms that should, among others, ease the growing caseload of the Court.

There are currently about 120.000 applications pending before the Court, of which more than 90 percent are inadmissible or have no legal basis, whereas about 50 percent of the admissable applications are 'repetitive cases'. The Court receives around 2000 new applications each month. Despite the increasing output of the Court the number of pending applications has been steadily growing and is likely to become unmanageable without implementation of further reform measures. The time it takes the Court to resolve a case is on average three to four years and without radical reform it may take even longer.

Protocol No. 14 of the European Convention on Human Rights which will enter into force on the first of June 2010, after the recent ratification by the Russian Federation, might offer some relief but is not considered sufficient to resolve the problems that the Court is facing, in particular, with regard to its backlog of pending applications and its continuously growing caseload.

At the Ministerial Conference, which intended to gather political support for the future course of the reform process, member states recognized the urgent need for additional measures. According to the joint declaration the measures are primarily aimed at reaching a balance between incoming and settled cases and both reducing the number of outstanding cases and the time it takes for the Court to adjudicate new cases, especially those involving serious violations of human rights. Also required are additional measures aimed at ensuring the rapid and full implementation of ECtHR judgments at the national level and the effectiveness and transparency of its supervision by the Committee of Ministers.

The Interlaken Declaration includes an Action Plan which describes the measures that need to be taken in order to achieve these aims and a timetable for their implementation.

Sunday, February 14, 2010

Krzysztof Skubiszewski (Poznań,1926 - Warsaw 2010)

Krzysztof Skubiszewski (Poznań,1926 - Warsaw 2010)

Professor Krzysztof Skubiszewski has died.
The international legal community in The Hague knew him well and will miss him dearly. He had many footsteps there. Already in 1956 he attended the summer-course of The Hague Academy of International Law and in 1960 the Research Center of the Academy. In 1993, when he was Minister of Foreign Affairs, he was candidate to the International Court of Justice to fill the vacancy created by the decease of Judge Lachs. He withdrew his candidacy on the appeal of the Polish Prime Minister. After the sudden fall of the government he still came to The Hague as newly appointed member of the Iran – United States Claims Tribunal (and in 1994 became its President). He was Judge ad hoc in several cases before the International Court of Justice. He also was member of the Steering Committee of the Permanent Court of Arbitration and member of the Curatorium of the Hague Academy of International Law.

The German occupation of Poland during his childhood, followed by the communist regime had an everlasting influence on his life and work. He was keenly aware of Poland’s precarious position in Europe between Germany and Russia. Many of his publications deal with the special relationship of Poland with its neighbors and his vision of Poland as a bridge between East and West Europe.
After an impressive international law career he joined in 1989 the first non-communist Polish government. As foreign minister he was the architect of the Polish pro-western foreign policy, with the final recognition of the Polish-German border as a major achievement.

The Peace Palace Library has a fair collection of Profesor Skubiszewski’s publications.

Thursday, February 4, 2010

Sino-US relations

Last week the US announced a major arms sales package to Taiwan, worth $6 billion of defensive weapons. The response of the Chinese government on this very sensitive issue was unusually tough. Taiwan is considered a province of the Peoples Republic of China since 1949 and mutual respect for territorial integrity is one of the five Chinese principles of peaceful coexistence.

A broad series of retaliatory measures including punitive sanctions to private companies are mentioned by the Ministries of National Defence and Foreign Affairs.

The bilateral relations with China, an economically and strategically vital part of the world, are one of the most important foreign policy challenges of the Obama government.

Added to the Taiwan issue is a list of other questions:
  • The censorship of Internet and hacking attacks of American websites in connection with human rights;

  • Google book scans and Chinese intellectual property law;

  • And of course the always smiling, exiled spiritual leader of the Tibetans, the Dalai Lama, who wants “genuine autonomy” for Tibet, not independence. President Obama, who will meet him soon, considers Tibet to be a part of China and is only concerned about the human rights of the Tibetans. Human rights are in China considered to be granted and protected by the State and require recognition by positive law as a result of economic and cultural development. They are not universal rights based on human dignity as such;

  • And finally the undervalued Chinese currency rates, according to the US and denied by the Chinese foreign ministry spokesman.
Cooperation between China and the United States is indispensible for the tackling of almost all international problems, from nuclear disarmement to climate change and the financial crisis. The age–old tool of statecraft must also in this chapter of Sino-US relations supply a positive continuation.

The Peace Palace Library at least provides thousands of pages in paper and electronic form, which analyse and give commentary on the matters involved. See the highlighted links to our catalogue.