Current and Future Developments in Law

In this chapter, we address the rights of the persons and groups to cultural freedom. This issue is particularly important in the context of our current diverse, multicultural society. The cultural diversity that makes our modern societies unique has reconsidered some of the relevant notions on the Constitutional State and the theory of rights, leaving room for questions of identity and belonging. The starting point of the right that concerns us here is the unquestionable fact that cultural uniformity and religious unity have disappeared as the essential elements of identity on which the birth of the modern State was based. This occurrence has led to a recognition of the “cultural differences” among the Constitutional State's population. The fact has been reflected in constitutional theory, and thus Peter Haberle goes so far as to refer to “culture” as the fourth element in the Constitutional State, as opposed to the conventional notion that limits the elements that make up the State to the traditional ones of territory, population and power. This chapter addresses the subject of people's freedom to belong to a culture and to identify themselves through it as a significant fact in the area of rights. This applies to individuals' “freedom rights” in particular, but it is also part of each person's right to a cultural identity. A right to cultural freedom as part of a person's right to cultural identity is permanently disassociated from the type of uniform equality that was protected by the abstract universality that used to be proclaimed. On the contrary, such a right is associated with each individual's specific life, evaluating cultural belonging in the context of diversity and as part of people's essential development. Cultural self-identification is incorporated into the category of subjective rights, with the intention of overcoming any situation of discrimination that may arise in this regard.

This chapter deals with the legal concept of reasonable accommodation, presenting in a novel way a topic that is not covered in the Spanish doctrine. It analyzes the development of this notion in the jurisprudence of the Supreme Court of Canada and the recent introduction in the European Court of Human Rights, in which some judges have made an explicit reference to this technique and call for their use. The duty to accommodate or adjust is the duty, under the law that managers of institutions and public and private organizations have in order to avoid any form of indirect discrimination for minorities and majorities, taking different harmonization adjustments in the application of certain laws or certain regulations, making norms more flexible or adapting them in its implementation. This allows a fairer management of cultural and religious diversity in public space, according to an intercultural model led by the Council of Europe.

In this chapter, we address the relationship between international law and domestic legislation to protect language rights and groups speaking sub-state’s languages. In the first part, the contribution of international and European instances is analyzed through the identification of three great models of protection applicable to the idiomatic field: the human rights model, the protection of linguistic minorities and the protection of linguistic diversity, highlighting their respective reception by the Spanish State. In the second part, after the definition of the general characteristics of the protection of language rights and linguistic groups in Spain, the different legal systems applicable to the Catalan language in four regions and the current legislation and its jurisprudential application are compared from the perspective of the normalization aim of the local language. Finally, the recent jurisprudence of the Constitutional Court on the of languages in the Statute of Autonomy of Catalonia of 2006 and its limitative impact on the language policies aimed at protecting and promoting the local language is analyzed.

The universality, which paradigmatically characterises human rights, becomes especially significant when linked to the field of migrations. In order to prevent and combat migrant vulnerability, migration policies and legal statutes need to respect certain inviolable limits. This paper proposes an analytical and critical review of the international framework of migrant rights, starting with the basic instruments of the United Nations and then delving into the European and Inter-American systems for the protection of human rights in the case of migrants. The aim of this paper is to show why it is imperative to strengthen international human rights law –by invoking and exercising it in an environment that systematically distorts it– in order to overcome the vulnerability that recurrently affects migrants.

This work raises and develops the fundamental questions about the phenomenon of the migration in the current world, from the theory of the human rights and its contrast with the praxis. After stating the big vulnerability that characterizes the migrants, the author tries to offer proposals and possible solutions to this problem in the context of the national and international politics.

The fusion of immigration and multiculturalism problems generates new legal challenges and a constitutional quandary focused on the Equality as a fundamental right. Discriminatory practices by gender such as anthropological practices, cults and traditions have been imported obstructing any legal relativism in the framework of an alliance between different civilizations. The Equality as a constitutional principle and as a multiculturalism limit involves a constitutional answer in relation to discriminatory practices that emerges from religious freedom, forced marriages and other coercive behaviors suffered by immigrant women.

The chapter highlights the situation of IDPs as a vulnerable group and the limits of humanitarian action in preventing and resolving displacement. Given the increasing number of IDPs in the world and the protracted nature of displacement there is a need to address the gaps that continue to limit their protection. In this context the search for durable solutions to internal displacement is understood as a complex process addressing human rights, humanitarian, development, reconstruction, and peacebuilding challenges. In this context, when the state is unable or unwilling to fulfill its responsibility to protect, the role of the international community is critical. Moreover, durable solutions require a human security approach that builds on the efforts and capabilities of IDPs. In order to put an end to internal displacement, it is necessary for professionals and academics to better understand the precise impact of the idea of sovereignty as responsibility and the rights-based protection approach on current international politics.

Analysing the situation of human rights in areas of conflict requires, especially when we want to speak about vulnerable groups, constant confrontation with the past. In this chapter, we address briefly the relationship between women and war in the former Yugoslavia. Our aim will be to understand the itinerary of women’s human rights in society from the times previous to the war until the moment when law and justice seem to be ready to act, in times of peace. One important element to understand where human rights stay for women in the post conflict processes of transitional justice is to see how law builds which acts are actually crimes.

The interest in equality and rights of the lesbians, gays, bisexuals and transsexuals group (referred to as LGBT herein) has aroused intense debate concerning the individual and social status of people belonging to this vulnerable group, which has furthermore taken on board a set of complex concepts that are also examined and discussed by other groups, such as the feminist community. The heterogeneity of the members of this group and the organization of the social system makes it difficult to define the implicated concepts, which implies an obstacle for achieving equality. Therefore, it is essential to clarify the concept map regarding sexual orientation and gender identity: firstly, to come to an understanding of who the members of this group are; secondly, to understand what their differences are and indicate whether they are relevant in order to make any distinction in terms of equality; and, thirdly, to identify new strategies for equality and the recognition of rights. All this is condensed into the possibility of discussing a unique subject with equal rights that respects the individual differences of everyone else. This equal subject would be based on the concept of human dignity, which in turn falls back on the fundamental values of freedom, equality and solidarity, established under law. Moreover, this struggle for equality requires complex measures that go beyond the customary assertion of equality and nondiscrimination. As for the concerns for women, a profound social transformation is required to break with the traditional mind-sets defining the sexes and the patriarchal system. At this point, international as well as regional legislation, despite positive advances, is still sparse and inadequate, in addition to being focused on mere formal equality and non-discrimination, which does not actually promote any profound change in society.

Increasingly, there is a new relationship in the borders between public and private law. Public authorities are progressively turning to private law when selling their assets and use contracting to fulfil the missions entrusted to them, providing services indirectly through licences to private companies, extrapolating to the public ones formulas which are used in private law or resorting to the forming of foundations. In short, to be able to overcome these serious problems, the objective that we have to set ourselves is to find a model of law which is able to carry out an alternative project which we are seeing today. And that can only be achieved through the discussion of human rights.

The first conceptualisation of equal rights in the modern sense, understood to mean equality of ownership of the same individual freedoms, was offered by the theorists of the social contract, from Hobbes to Rousseau, but equal rights still appeared as an immaterialisation hypothetical in a Civil Society (State) that was yet to be constructed. Starting from the same enlightened principles, legal positivism takes on the task of redirecting all disputes about material equality, that were specific to the Enlightenment period, towards the more accessible proposal of formal legal equality regarding the respect of individual rights, essential for a liberal social order that holds up the written Constitution as a materialisation of popular Sovereignty. Leaving aside the complex preoccupation with the material equality of individual rights, all of jurists’ efforts centre upon developing the aspect of the concept of equality that can be interpreted as universally valid (the formal-legal aspect). And also, the modern conception of democracy, i.e. the clearest and most conscious system for determining collective social institutions was built on the basis of opting for multi-ethnic and multinational States for the purpose of political integration of minorities. The consensus and relativism of values considered as the basic criteria for the functioning of democracy discouraged the possibility of mono-ethnic States, thereby favouring a situation where several communities live side by side and get along within the same State.

The recent decades have broken various secessionist movements related to national minorities existing within liberal-democratic multinational states like Belgium, Canada, United Kingdom and Spain, which, once assimilated by force or free, have maintained throughout History territory, language and cultural traits. They are nations like flemish, quebecois, catalans or scots. In this context, International Law neither authorizes nor prohibits secession, leaving this type of processes in the political sphere. Only in response to the case of colonized peoples through the right to selfdetermination recognized by the United Nations. However, the holding of referendums as Quebec and Scotland have stressed that they have begun to operate other principles of international law like the democratic principle or the effectiveness principle. The same International Court of Justice stated that the secession of Kosovo could sustain in another kind of legitimacy: the existence of a de facto state in the absence of violence after intense negotiations prior well-conducted and good faith, but failed.

In this chapter, we address the relationship between the audiovisual sector and non-dominant linguistic communities. In Europe, the first coordinate is characterised by a progressive opening up of the sector to the free market through the free circulation of audiovisual media. The second coordinate of this study concerns non-dominant linguistic communities. This article deals with the legal possibilities for encouraging the use of the languages of the non-dominant linguistic communities in this field. We begin by analysing the linguistic characteristics of the human right to freedom of expression, examining the margins for developing linguistic policy for the media sector. Then, we shall refer to linguistic diversity as a limit for the audiovisual national linguistic policy. Finally, we analyse the different dimensions of the EU legal framework on this matter.