Search results for: European court of human rights

Authors: Avitus A. Agbor

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Numerous incidents, ranging from trivial to catastrophic, do come to mind when one reflects on hate. The victims of these belong to specific identifiable groups within communities. These experiences evoke discussions on Islamophobia, xenophobia, homophobia, anti-Semitism, racism, ethnic hatred, atheism, and other brutal forms of bigotry. Common to all these is an invisible but portent force that drives all of them: hatred. Such hatred is usually fueled by a profound degree of intolerance (to diversity) and the zeal to impose on others their beliefs and practices which they consider to be the conventional norm. More importantly, the perpetuation of these hateful acts is the unfortunate outcome of an overplay of invectives and hate speech which, to a greater extent, cannot be divorced from hate. From a legal perspective, acknowledging the existence of an undeniable link between hate speech and hate is quite easy. However, both within and without legal scholarship, the notion of “hate speech” remains a conundrum: a phrase that is quite easily explained through experiences than propounding a watertight definition that captures the entire essence and nature of what it is. The problem is further compounded by a few factors: first, within the international human rights framework, the notion of hate speech is not used. In limiting the right to freedom of expression, the ICCPR simply excludes specific kinds of speeches (but does not refer to them as hate speech). Regional human rights instruments are not so different, except for the subsequent developments that took place in the European Union in which the notion has been carefully delineated, and now a much clearer picture of what constitutes hate speech is provided. The legal architecture in domestic legal systems clearly shows differences in approaches and regulation: making it more difficult. In short, what may be hate speech in one legal system may very well be acceptable legal speech in another legal system. Lastly, the cornucopia of academic voices on the issue of hate speech exude the divergence thereon. Yet, in the absence of a well-formulated and universally acceptable definition, it is important to consider how hate speech can be defined. Taking an evidence-based approach, this research looks into the issue of defining hate speech in legal scholarship and how and why such a formulation is of critical importance in the prohibition and prosecution of hate speech.

Keywords: hate speech, international human rights law, international criminal law, freedom of expression

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Authors: Begum Koru, Isik Aybay, Demet Celik Ulusoy

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The discipline of law is quite complex and has its own terminology. Apart from written legal rules, there is also living law, which refers to legal practice. Basic legal rules aim at the happiness of individuals in social life and have different characteristics in different branches such as public or private law. On the other hand, law is a national phenomenon. The law of one nation and the legal system applied on the territory of another nation may be completely different. People who are experts in a particular field of law in one country may have insufficient expertise in the law of another country. Today, in addition to the local nature of law, international and even supranational law rules are applied in order to protect basic human values and ensure the protection of human rights around the world. Systems that offer algorithmic solutions to legal problems using artificial intelligence (AI) tools will perhaps serve to produce very meaningful results in terms of human rights. However, algorithms to be used should not be developed by only computer experts, but also need the contribution of people who are familiar with law, values, judicial decisions, and even the social and political culture of the society to which it will provide solutions. Otherwise, even if the algorithm works perfectly, it may not be compatible with the values of the society in which it is applied. The latest developments involving the use of AI techniques in legal systems indicate that artificial law will emerge as a new field in the discipline of law. More AI systems are already being applied in the field of law, with examples such as predicting judicial decisions, text summarization, decision support systems, and classification of documents. Algorithms for legal systems employing AI tools, especially in the field of prediction of judicial decisions and decision support systems, have the capacity to create automatic decisions instead of judges. When the judge is removed from this equation, artificial intelligence-made law created by an intelligent algorithm on its own emerges, whether the domain is national or international law. In this work, the aim is to make a general analysis of this new topic. Such an analysis needs both a literature survey and a perspective from computer experts' and lawyers' point of view. In some societies, the use of prediction or decision support systems may be useful to integrate international human rights safeguards. In this case, artificial law can serve to produce more comprehensive and human rights-protective results than written or living law. In non-democratic countries, it may even be thought that direct decisions and artificial intelligence-made law would be more protective instead of a decision "support" system. Since the values of law are directed towards "human happiness or well-being", it requires that the AI algorithms should always be capable of serving this purpose and based on the rule of law, the principle of justice and equality, and the protection of human rights.

Keywords: AI and law, artificial law, protection of human rights, AI tools for legal systems

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Authors: Vanda Božić, Željko Nikač

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Trafficking in children, especially vulnerable victims, is a qualified form of committing the crime of human trafficking, and a special form of abuse and violation of children's rights. Given that trafficking in children is dangerous, but also a specific form of crime in relation to trafficking in human beings, this paper will in the first part indicate the forms of trafficking in children (trafficking in children for sexual exploitation, child pornography, and pedophilia, exploitation of labor, begging, performance of criminal acts, adoption, marriage and participation in armed conflicts). The second part references the international documents which regulate this matter as well as the solutions in national criminal legislations of Republic of Croatia and Republic of Serbia. It points to the essential features and characteristics of the victims, according to sex, age, and citizenship, as well as the age of children at the stage of solicitation and recruitment and the status of the family from which the child comes from. The work includes a special emphasis on international police cooperation in the fight against trafficking in children. Concluding remarks set out proposals de lege ferenda that can be of significant impact, particularly on prevention, and then also on repression in combating this serious crime.

Keywords: trafficking in children, trafficking in human beings, child as a victim of human trafficking, children’s rights

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Authors: Sitaram Dahal

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Among many strategic and practical needs in overcoming the threats and challenges being experienced in the global environment, constitutional provision for Rights to live in clean and healthy environment is one and so is the school curriculum incorporating information on such rights. Government of Nepal has also introduced information on rights to live in clean and healthy environment, as provisioned in its interim constitution of 2007, in the secondary level curriculum of formal education. As the predetermined specific objective of such curriculum is to prepare students who are conscious of citizens’ rights and responsibilities and are able to adopt functions, duties and rights of the rights holders and duty bearers; the study was designed to assess the effectiveness of such curriculum. The study was conducted in one private school and a community school to assess the effectiveness of such curriculum. The study shows that such curriculum has been able to make students responsible duty bearers as they were aware of their habits towards environment. Whereas only very few students are aware enough as being rights holders. Students of community schools were aware rights holders as they complain if they are not satisfied with the environment of the school itself. But private school is far behind in this case. It can be said that only curriculum with very few portion of information on such rights might not be capable enough to meet its objective.

Keywords: curriculum, environmental rights, constitution, effectiveness

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Authors: Babatunde Osabiya

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Cybersecurity has emerged as a pressing policy problem in recent years, affecting individuals, businesses, and governments worldwide. This research paper aims to critically review the literature on cybersecurity policy and apply policy theory to propose a policy approach that balances the freedom to access and use technology with the human rights risks and threats posed by cyber. Drawing on various credible sources, the paper examines the scale and seriousness of cyber threats, highlighting the growing threat posed by cybercriminals, hackers, and nation-states. The paper also identifies the key challenges facing policymakers, including the need for more significant investment in cybersecurity research and development and the importance of balancing the benefits of technological innovation with the risks to privacy, security, and human rights. To address these challenges, the paper proposes a policy approach emphasizing investing in cybersecurity research and development to maintain a technological edge over potential adversaries. This approach also highlights the need for greater collaboration between government, industry, and civil society to develop effective cybersecurity policies and practices that protect the rights and freedoms of people while mitigating the risks posed by cyber threats. This paper will contribute to the growing body of literature on cybersecurity policy and offers a policy framework for addressing this critical policy challenge.

Keywords: security risk, legal framework, cyber security and policy, national security

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Authors: Louay Safi

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The notion of secular society that evolved over the last two centuries was initially intended to free the public sphere from religious imposition, before it assumed the form a comprehensive ideology whose aim is to prevent any overt religious expression from the public space. The negative view of religious expression, and the desire by political elites to purge the public space from all forms of religious expressions were first experienced in the Middle East in the last decades of the twentieth century in relation to Islam, before it manifests itself in the twentieth century Europe. Arab regimes were encouraged by European democracies to marginalize all forms of religious expressions in the public as part of the secularization process that was deemed necessary for modernization and progress. The prohibition of Islamic symbols and outlawing the headscarf was first undertaken to Middle Eastern republics, such as Turkey in 1930s and Syria in 1970s, before it is implemented recently in France. Secularization has been perceived by European powers as the central aspect of social and political liberalization, and was given priority over democratization and human rights, so much so that European elites were willing to entrust the task of nurturing liberal democracy to Arab autocrats and dictators. Not only did the strategy of empowering autocratic regimes to effect liberal democratic culture failed, but it contributed to the rise of Islamist extremism and produced failed states in Syria and Iraq that undermine both national and global peace and stability. The paper adopts the distinction made by John Rawls between political and comprehensive liberalism to argue that the modernization via secularization in Muslim societies is counterproductive and has subverted early successful efforts at democratization and reform in the Middle East. Using case studies that illustrate the role of the secularization strategy in Syria, Iran, and Egypt in undermining democratic and reformist movements in those countries, the paper calls for adopting a different approach rooted in liberal and democratic values rather than cultural practices and lifestyle. The paper shows that Islamic values as articulated by reform movements support a democratic and pluralist political order, and emphasizes the need to legitimize and support social forces that advocate democracy and human rights. Such an alternative strategy allows for internal competition among social groups for popular support, and therefore enhances the chances that those with inclusive and forward-looking political principles and policies would create a democratic and pluralist political order more conducive to meaningful national and global cooperation, and respectful of human dignity.

Keywords: democracy, Islamic values, political liberalism, secularization

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Authors: Foluke Dada

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The Prevalence of gender-based violence in Nigeria is of such concern and magnitude that the government has intervened by ratifying international instruments such as the convention on the elimination of all forms of discrimination against women, the declaration on the elimination of violence against women; the protocol to the African charter on human and people’s rights on the rights of women, etc. By promulgating domestic laws that sought to prevent the perpetration of Gender-based violence and also protect victims from future occurrences. Nigeria principally has two legal codes creating criminal offenses and punishments for breach of those offenses, the Criminal Code Law, applying to most states in Southern Nigeria and the Penal Code applying to states in Northern Nigeria. Individual State laws such as the Ekiti State and Lagos State Gender-Based Violence laws are also discussed. This paper addresses Gender-Based Violence in Nigeria and exposes the inadequacies in the laws and their application. The paper postulates that there is a need for more workable public policy that strengthens the social structure fortified by the law in order to engender the necessary changes and provide the opportunity for government to embark on grassroots-based advocacy that engage the victims and sensitize them of their rights and how they can enjoy some of the protections afforded by the laws.

Keywords: gender, violence, human rights, law and policy

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Authors: Gabrielle Pilliat

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The Supreme Court of Canada rendered unconstitutional the sections of the Canadian Criminal Code which prohibited the Physician-assisted suicide in February 2015. However, in 1993, the same Supreme Court of Canada ruled that Physician-assisted suicide should remain absolutely prohibited. In the light of these historical facts, we will explore how the Supreme Court of Canada was able to make two different decisions 20 years apart. To understand how Canada could rule so differently between 1993 and 2015 about Physician-assisted suicide, we will analyze the content of the Supreme Court of Canada decisions’ discourse of 1993 and of 2015. Our preliminary results indicate that A) the patient autonomy (or the personal choice) has taken over the idea of the preservation of life (or the sacred character of life) in 2015. B) That between 1993 and 2015, the physician is seen differently by the Judges; like an abusive murderer in 1993 and like an objective evaluator in 2015. C) That the patient is seen as a victim in 1993 and more like a hero in 2015.

Keywords: physician-assisted suicide, patient autonomy, choice, sacred character of life, dignity

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Authors: Sonia Boulos

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The prohibition on ‘inhuman treatment’ constitutes one of the central tenets of modern international human rights law. It is incorporated in principal international human rights instruments including Article 5 of the Universal Declaration of Human Rights, and Article 7 of the International Covenant on Civil and Political Rights. However, in the absence of any legislative definition of the term ‘inhuman’, its interpretation becomes challenging. The aim of this article is to critically analyze the interpretation of the term ‘inhuman’ in international human rights law and to suggest a new approach to construct its meaning. The article is composed of two central parts. The first part is a critical appraisal of the interpretation of the term ‘inhuman’ by supra-national human rights law institutions. It highlights the failure of supra-national institutions to provide an independent definition for the term ‘inhuman’. In fact, those institutions consistently fail to distinguish the term ‘inhuman’ from its other kin terms, i.e. ‘cruel’ and ‘degrading.’ Very often, they refer to these three prohibitions as ‘CIDT’, as if they were one collective. They were primarily preoccupied with distinguishing ‘CIDT’ from ‘torture.’ By blurring the conceptual differences between these three terms, supra-national institutions supplemented them with a long list of specific and purely descriptive subsidiary rules. In most cases, those subsidiary rules were announced in the absence of sufficient legal reasoning explaining how they were derived from abstract and evaluative standards embodied in the prohibitions collectively referred to as ‘CIDT.’ By opting for this option, supra-national institutions have created the risk for the development of an incoherent body of jurisprudence on those terms at the international level. They also have failed to provide guidance for domestic courts on how to enforce these prohibitions. While blurring the differences between the terms ‘cruel,’ ‘inhuman,’ and ‘degrading’ has consequences for the three, the term ‘inhuman’ remains the most impoverished one. It is easy to link the term ‘cruel’ to the clause on ‘cruel and unusual punishment’ originating from the English Bill of Rights of 1689. It is also easy to see that the term ‘degrading’ reflects a dignatarian ideal. However, when we turn to the term ‘inhuman’, we are left without any interpretative clue. The second part of the article suggests that the ordinary meaning of the word ‘inhuman’ should be our first clue. However, regaining the conceptual independence of the term ‘inhuman’ requires more than a mere reflection on the word-meaning of the term. Thus, the second part introduces philosophical concepts related to the understanding of what it means to be human. It focuses on ‘the capabilities approach’ and the notion of ‘human functioning’, introduced by Amartya Sen and further explored by Martha Nussbaum. Nussbaum’s work on the basic human capabilities is particularly helpful or even vital for understanding the moral and legal substance of the prohibition on ‘inhuman’ treatment.

Keywords: inhuman treatment, capabilities approach, human functioning, supra-national institutions

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Authors: Nsubuga Bright Titus

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The resource curse is an unavoidable phenomenon among oil producing states in Africa. There is no oil production currently in Uganda although exploration projections set 2020 as the year of initial production. But as the exploration proceeds and Production Sharing Agreements (PSA) are negotiated, so does the anticipation for oil revenues. The Indigenous people of Bunyoro are claiming the right to their indigenous lands through the African Commission on Human and People’s Rights (ACHPR) of the African Union. They urge the commission to investigate the government of Uganda on violations of their human rights. In this paper, oil as a resource curse is examined through the Dutch disease. Regional and global entanglements, as well as the contestation between the indigenous Bunyoro group and the oil industry in Uganda is explored. The paper also demonstrates that oil as a local possibility and national reality has propelled anxiety about oil revenues among various, local actors, State actors, regional and global actors.

Keywords: Entanglements, Extractive resources, Framing, web of relations

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Authors: Nicole Cervenka

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On the question of norms in international politics, scholars are divided over whether norms are a tool for power politics or a genuine reflection of an emergent international society. The line is drawn between rationalism and idealism, but this dialectical relationship needs to be broken down if we hope to come to a comprehensive understanding of how norms play out in international society. The concept of an elusive international society is a simplification of a more pluralistic, cosmopolitan, and diverse collection of international societies. The English School effectively overcomes realist-idealist dichotomies and provides a pluralistic, comprehensive explanation and description of international societies through its application to two distinct areas: human rights as well as security and war. We argue that international norms have always been present in human rights, war, and international security, forming international societies that can be complimentary or oppositional, beneficial or problematic. Power politics are present, but they can only be regarded as partially explanatory of the role of norms in international politics, which must also include history, international law, the media, NGOs, and others to fully represent the normative influences in international societies. A side-by-side comparison of international norms of war/security and human rights show how much international societies converge. World War II was a turning point in terms of international law, these forces of international society have deeper historical roots. Norms of human rights and war/security are often norms of restraint, guiding appropriate treatment of individuals. This can at times give primacy to the individual over the sovereign state. However, state power politics and hegemony are still intact. It cannot be said that there is an emergent international society—international societies are part of broader historical backdrops. Furthermore, states and, more generally, power politics, are important components in international societies, but international norms are far from mere tools of power politics. They define a more diverse, complicated, and ever-present conception of international societies.

Keywords: English school, international societies, norms, pluralism

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Authors: Neimenuo Kengurusie

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Human trafficking is considered a form of slavery in modern day era and a gross violation of human rights and one of the most organized crimes of the day transcending cultures, geography and time. Human trafficking is a highly complex phenomenon involving many actors like victims, survivors, their families, communities and third parties that recruit, transport and exploit the trafficked victims. It takes different forms such as child trafficking, trafficking for labour, trafficking for sexual exploitation, trafficking for organ transplantation etc. and affects virtually every corner of the world. This research draws on a variety of sources, including books, articles, journals, newspaper reports, human rights reports, online materials and interviews. In India, particularly the North East region, the issue of human trafficking has become a concern regionally, nationally and internationally. The focus of this paper is on the North Eastern part of India as it is a socially and economically backward region of the country which makes women and children susceptible to trafficking. Women and children from these regions are trafficked within and outside the state. Therefore, the paper seeks to explore the issue of human trafficking, especially trafficking of women and children in North East India, which receives insufficient attention in literature. The paper seeks to analyze and understand the trend and patterns of trafficking and the mechanisms that reinforces the process and perpetuates the phenomenon of trafficking considering the nature and scope of the problem. The paper also analyzes the anti-trafficking laws initiated by India and the North East states in particular for combating human trafficking in North East India.

Keywords: children, human trafficking, North East India, women

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Authors: S. Vlasyan

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The article deals with the implementation of the right to self-determination of peoples on the example of Nagorno-Karabakh Republic. The problem of correlation of two fundamental principles of international law i. e. territorial integrity and the right to self-determination of peoples is considered to be one of the vital issues in the field of international law for several decades. So, in this article, the author analyzes the decision of the Supreme Court of Canada regarding specific issues of secession of Quebec from Canada, as well as the decision of the International Court of Justice in the case concerning East Timor (Portugal v. Australia), and in the case of Western Sahara. The author formulates legal conditions of Nagorno-Karabakh secession.

Keywords: right of self-determination, territorial integrity, the principles of International Law, Nagorno-Karabakh Republic

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Authors: Neha Tiwari

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Rights are prerequisite for individuals to pursue their aims and enrich themselves. Laski has said rights are, ‘conditions of social life without which no man can seek himself at his best.’ However with superior technology, rights of many individuals are at stake as well. One such sufferer is the babies born out of the practice of commercial surrogacy. Commercial surrogacy has emerged as the most viable option for the childless couples. The practice has garnered lot of debate in both academia and media. Some argue for a complete ban and some for strict rules and regulation. Most of the time the debate is regarding the rights of the surrogate, something which we cannot ignore. Equally important are the rights of the children born out of such arrangements. However, not much attention is being paid to them. Recently, a controversy emerged when a surrogate gave birth to twins. One of the babies, Gammy born with down syndrome was left behind by the couple. Gammy could die because his poor Thai surrogate mother may not be able to pay for his treatment. Even if he survives, he will never know his twin sister as her identity would never be disclosed. This is just one of many such cases where the future of such babies is being played with. If the rights of these children are not taken care of many of them will have to bear the brunt of society's ignorance and perhaps live with a scar which won't heal in their lifetime.

Keywords: babies, commercial surrogacy, rights, technology

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Authors: Tien Wei Daniel Hwang

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The computer program inventors, particularly in Fintech, are unwilling to apply for patents in Taiwan after 2014. Passing the ‘statutory subject matter eligibility’ test and becoming the system patent are not the only cause to the reduction in the number of application. Taiwanese court needs to resolve whether the defendants had ‘used’ that software patent in patent direct infringement suit. Both 35 U.S.C. § 271(a) and article 58 paragraph 2 of Taiwan Patent Law don’t define the meaning of ‘use’ in the statutes. Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc. reconsidered the meaning of ‘use’ in system patent infringement, and held that ‘a party must put the invention into service, i.e., control the system as a whole and obtain benefit from it.’ In Taiwan, Intellectual Property Office, Ministry of Economic Affairs, has explained that ‘using’ the patent is ‘achieving the technical effect of the patent.’ Nonetheless, this definition is too broad to apply to not only the software patent but also the traditional patent. To supply the friendly environment for Fintech corporations, this article aims to let Taiwanese court realize why and how United States District Court, S.D. Indiana, Indianapolis Division and United States Court of Appeals, Federal Circuit defined the meaning of ‘use’ in 35 U.S.C. § 271(a). However, this definition is so lax and confuses many defendants in United States. Accordingly, this article indicates the elements in Taiwan Patent Law are different with 35 U.S.C. § 271(a), so Taiwanese court can follow the interpretation of ‘use’ in Centillion Data case without the same obstacle.

Keywords: direct infringement, FinTech, software patent, use

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Authors: Kudrat-E-Khuda Babu

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Rohingya refugees are the most marginalized and persecuted section of people in the world. The heinous brutality of Myanmar has forced the Muslim minority community to flee themselves to their neighboring country, Bangladesh for quite a few times now. The recent atrocity of the Buddhist country has added insult to injury on the existing crisis. In lieu of protection, the rights of the Rohingya community in Myanmar are being violated through exclusion from citizenship and steamroller of persecution. The mass influx of Rohingya refugees to Bangladesh basically took place in 1978, 1992, 2012, and 2017. At present, there are around one million Rohingyas staying at Teknaf, Ukhiya of Cox’s Bazar, the southern part of Bangladesh. The country, despite being a poverty-stricken one, has shown unprecedented generosity in sheltering the Rohingya people. For sheltering half of the total refugees in 2017, the Prime Minister of Bangladesh, Sheikh Hasina is now being regarded as the lighthouse of humanity or the mother of humanity. Though Bangladesh is not a ratifying state of the UN Refugee Convention, 1951 and its Additional Protocol, 1967, the country cannot escape its obligation under international human rights jurisprudence. Bangladesh is a party to eight human rights instruments out of nine core instruments, and thus, the country has an indirect obligation to protect and promote the rights of the refugees. Pressure from international bodies has also made Bangladesh bound to provide refuge to Rohingya people. Even though the demographic vulnerability and socio-economic condition of the country do not suggest taking over extra responsibility, the principle of non-refoulment as a part of customary international law reminds us to stay beside those persecuted or believed to have well-founded fear of persecution. In the case of HM Ershad v. Bangladesh and Others, 7 BLC (AD) 67, it was held that any international treaty or document after signing or ratification is not directly enforceable unless and until the parliament enacts a similar statute howsoever sweet the document is. As per Article 33(2) of the 1951 Refugee Convention, there are even exceptions for a state party in case of serious consequences like threat to national security, apprehension of serious crime and danger to safeguard state population. Bangladesh is now at a cross-road of human rights and national interest. The world community should come forward to resolve the crisis of the persecuted Rohingya people through repatriation, resettlement, and reintegration.

Keywords: Rohingya refugees, human rights, Bangladesh, Myanmar

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Authors: Bellinda R. Chinowawa

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As part of a wider strategy to stifle civil society, Governments routinely resort to judicial harassment through the use of civil and criminal to impugn the integrity of human rights defenders and that of perceived political opponents. This phenomenon is rife in militarised or autocratic regimes where there is no tolerance for dissenting voices. Zimbabwe, ostensibly a presidential republic founded on the values of transparency, equality, freedom, is characterised by brutal suppression of perceived political opponents and those who assert their basic human rights. This is done through a wide range of tactics including unlawful arrests and detention, torture and other cruel, inhuman degrading treatment and enforced disappearances. Professionals including, journalists and doctors are similarly not spared from state attack. For human rights defenders, the most widely used tool of repression is that of judicial harassment where the judicial system is used to persecute them. This can include the levying of criminal charges, civil lawsuits and unnecessary administrative proceedings. Charges preferred against range from petty offences such as criminal nuisance to more serious charges of terrorism and subverting a constitutional government. Additionally, government sponsored individuals and organisations file strategic lawsuits with pecuniary implications order to intimidate and silence critics and engender self-censorship. Some HRDs are convicted and sentenced to prison terms, despite not being criminals in a true sense. While others are acquitted judicial harassment diverts energy and resources away from their human rights work. Through a consideration of statistical data reported by human rights organisations and face to face interviews with a cross section of human rights defenders, the article will map the incidence of judicial harassment in Zimbabwe. The article will consider the multi-level sociological and contextual factors which influence the Government of Zimbabwe to have easy recourse to criminal law and the debilitating effect of these actions on HRDs. These factors include the breakdown of the rule of law resulting in state capture of the judiciary, the proven efficacy of judicial harassment from colonial times to date, and the lack of an adequate redress mechanism at international level. By mapping the use of the judiciary as a tool of repression, from the inception of modern day Zimbabwe to date, it is hoped that HRDs will realise that they are part of a greater community of activists throughout the ages and should emboldened in the realisation that it is an age old tactic used by fallen regimes which should not deter them from calling for accountability.

Keywords: autocratic regime, colonial legacy, judicial harassment, human rights defenders

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Authors: Beata Anna Bronowicka

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Purpose The purpose of this paper is to improve effectiveness of mediation in family matters regarding child protection in Australia and Poland. Design/methodology/approach the methodological approach is phenomenology. Two phenomenological methods of data collection were used in this research 1/ a doctrinal research 2/an interview. The doctrinal research forms the basis for obtaining information on mediation, the date of introduction of this alternative dispute resolution method to the Australian and Polish legal systems. No less important were the analysis of the legislation and legal doctrine in the field of mediation in family matters, especially child protection. In the second method, the data was collected by semi-structured interview. The collected data was translated from Polish to English and analysed using software program. Findings- The rights of children in the context of mediation in Australia and Poland differ from the recommendations of the UN Committee on the Rights of the Child, which require that children be included in all matters that concern them. It is the room for improvement in the mediation process by increasing child rights in mediation between parents in matters related to children. Children should have the right to express their opinion similarly to the case in the court process. The challenge with mediation is also better understanding the role of professionals in mediation as lawyers, mediators. Originality/value-The research is anticipated to be of particular benefit to parents, society as whole, and professionals working in mediation. These results may also be helpful during further legislative initiatives in this area.

Keywords: mediation, family law, children's rights, australian and polish family law

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Authors: CM van der Bank, Marjoné van der Bank

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International and domestic environmental law has evolved quite rapidly in the last few decades. At the international level the Stockholm and Rio Declarations paved the way for a broad based consensus of the international community on environmental issues and principles. At the Domestic level also many states have incorporated environmental protection in their constitutions and even more states are doing the same at least in their domestic legislations. In this process of evolution environmental law has unleashed a number of novel principles such as; the participatory principle, the polluter pays principle, the precautionary principle, the inter-generational and intra-generational principles, the prevention principle, the sustainable development principle and so on.

Keywords: environment, human rights, international law, protection

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Authors: Farangiz Davranbekova

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Subject: The study explores the impact of Over-the-Top services in the sports rights market, focusing on football games. This impact is analysed in the big five European football markets. The research entails how the pay-TV market is combating the disruptors' entry, how the fans are adjusting to these changes and how leagues and football clubs are orienting in the transitional period of more choice. Aims and methods: The research aims to offer a general overview of the impact of OTT players in the football rights market. A theoretical framework of Jenkins’ five layers of convergence is implemented to analyse the transition the sports rights market is witnessing from various angles. The empirical analysis consists of secondary research data as and seven expert interviews from three different clusters. The findings are bound by the combination of the two methods offering general statements. Findings: The combined secondary data as well as expert interviews, conducted on five layers of convergence found: 1. Technological convergence presents that football content is accessible through various devices with innovative digital features, unlike the traditional TV set box. 2. Social convergence demonstrates that football fans multitask using various devices on social media when watching the games. These activities are complementary to traditional TV viewing. 3. Cultural convergence points that football fans have a new layer of fan engagement with leagues, clubs and other fans using social media. Additionally, production and consumption lines are blurred. 4. Economic convergence finds that content distribution is diversifying and/or eroding. Consumers now have more choices, albeit this can be harmful to them. Entry barriers are decreased, and bigger clubs feel more powerful. 5. Global convergence shows that football fans are engaging with not only local fans but with fans around the world that social media sites enable. Recommendation: A study on smaller markets such as Belgium or the Netherlands would benefit the study on the impact of OTT. Additionally, examination of other sports will shed light on this matter. Lastly, once the direct-to-consumer model is fully taken off in Europe, it will be of importance to examine the impact of such transformation in the market.

Keywords: sports rights, OTT, pay TV, football

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Authors: Nithyananda K. V.

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Organizations follow various strategies for managing their intellectual property rights, either in the form of securing IP rights or using such IP rights through leveraging, monetizing, and commercializing them. It is well known that organizations adopt different intellectual property strategies in response to other organizations within the industry. But within an organization, and within the products that are being manufactured and sold by it, the strategies for managing its intellectual property rights keep changing at different stages of the product life cycle. Organizations could adopt not only different strategies for managing its intellectual property rights, but could also adopt different kinds of business models to leverage, monetize, and commercial the IP rights. This paper analyzes the various strategies that can be adopted by organizations to manage its IP rights at different stages of the product life cycle and the rationale for adopting such strategies. This would be a secondary research, based solely on the literature of strategic management, new product development, resource-based management, and the intellectual property management. This paper synthesizes the literature from these streams to propose a conceptual framework of strategies that can be adopted by organizations for managing its IP rights in conjunction with the life cycle of the products that it manufactures and sells in the market. This framework could be adopted by organizations in implementing strategies for effectively managing their IP rights.

Keywords: intellectual property strategy, management of intellectual property rights, New product development, product life cycle

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Authors: Vladimir Sharapaev

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This paper seeks to address the question of the authorship of copyrighted works created solely by the artificial intelligence or with the use thereof, and proposes possible interpretational or legislative solutions to the problems arising from the plurality of the persons potentially involved in the ultimate creation of the work and division of tasks among such persons. Being based on the commonly accepted assumption that a copyrighted work can only be created by a natural person, the paper does not deal with the issues regarding the creativity of the artificial intelligence per se (or the lack thereof), and instead focuses on the distribution of the intellectual property rights potentially belonging to the creators of the artificial intelligence and/or the creators of the content used for the formation of the copyrighted work. Moreover, the technical development and rapid improvement of the AI-based programmes, which tend to be reaching even greater independence on a human being, give rise to the question whether the initial creators of the artificial intelligence can be entitled to the intellectual property rights to the works created by such AI at all. As the juridical practice of some European courts and legal doctrine tends to incline to the latter opinion, indicating that the works created by the AI may not at all enjoy copyright protection, the questions of authorships appear to be causing great concerns among the investors in the development of the relevant technology. Although the technology companies dispose with further instruments of protection of their investments, the risk of the works in question not being copyrighted caused by the inconsistency of the case law and a certain research gap constitutes a highly important issue. In order to assess the possible interpretations, the author adopted a doctrinal and analytical approach to the research, systematically analysing the European and Czech copyright laws and case law in some EU jurisdictions. This study aims to contribute to greater legal certainty regarding the issues of the authorship of the AI-created works and define possible clues for further research.

Keywords: artificial intelligence, copyright, authorship, copyrighted work, intellectual property

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Authors: Addisu Teshama

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The existing criminal procedure law which is the main determinant of the phenomena of pre-trial detention is under revision in Ethiopia. The drafting work is completed and submitted for approval to the House of Peoples Representatives. The drafters of the draft law claim that the existing law is not in harmony with the constitutionally and internationally recognized principles pertinent to pretrial detention regulation. Further, the drafters allege that the drafting process is dictated by human rights principles recognized in the FDRE constitution and international human rights instruments ratified by Ethiopia. This article aims to the asses the plausibility of the claims of the drafters. For that purpose, this article uses the standards and guidelines articulated by international human rights standard setters as bench marks to juxtapose and judge the existing law and the draft criminal procedure and evidence code (DCrimPEC). The study found that the many aspects of the pre-trial detention law of Ethiopia are not in compliance with international law standards in the existing criminal procedure law. The DCrimPEC is aimed to harmonize the existing law with the constitution and international law standards. In this regard, the study found that the DCrimPEC has made significant changes on pre-trial detention policies which are not in harmony the principle of presumption of innocence. However, there are still gaps.

Keywords: pre-trial detention, right to personal liberty, right to bail, Ethiopia

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Authors: Deborah García-Magna

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When a person goes through the criminal justice system, either as a suspect, arrested, prosecuted or convicted, certain personal data are recorded, and a wide range of persons and organizations may have access to it. The recording of data can have a great impact on the daily life of the person concerned during the period of time determined by the legislation. In addition, this registered information can refer to various aspects not strictly related directly to the alleged or actually committed infraction. In some areas, the Spanish legislation does not clearly determine the cancellation period of the registers nor what happens when they are cancelled since some of the files are not really erased and remain recorded, even if their consultation is no more allowed or it is stated that they should not be taken into account. Thus, access to the recorded data of arrested or convicted persons may reduce their possibilities of reintegration into society. In this research, some of the areas in which data recording has a special impact on the lives of affected persons are analyzed in a critical manner, taking into account Spanish legislation and jurisprudence, and the influence of the European Court of Human Rights, the Council of Europe and other supranational instruments. In particular, the analysis cover the scope of video-surveillance in public spaces, the police record, the recording of personal data for the purposes of police investigation (especially DNA and psychological profiles), the registry of administrative and minor offenses (especially as they are taken into account to impose aggravating circumstaces), criminal records (of adults, minors and legal entities), and the registration of special circumstances occurred during the execution of the sentence (files of inmates under special surveillance –FIES–, disciplinary sanctions, special therapies in prison, etc.).

Keywords: ECHR jurisprudence, formal and informal criminal control, privacy, disciplinary sanctions, social reintegration

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Authors: María José Benitez Jimenez

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This study seeks to make clear the importance of family reunification in order to establish consolidated habits of coexistence of immigrants, directly favoring the relationship of the family nucleus and indirectly the social integration of foreigners. In addition to the theoretical analysis of the subject, information has been reviewed by the National Institute of Statistics and Reports of Spanish organizations that compile data on immigrants and specifically on family reunification. The Spanish regulations on foreigners include the right of foreigners legally residing in Spain to regroup their families. The general conditions required to exercise this right are having legally resided in Spain for one year and having obtained authorization to reside for one more year. There are exceptions to the requirement of having resided for one year in our country. Article 39 of the Spanish Constitution, although it does not express what is to be understood as a family, does refer to the fact that ‘the public authorities ensure the social, economic and legal protection of the family’. Therefore for the Spanish State, the family institution, in a broad sense, enjoys a privileged treatment that is revealed in the Supreme Norm and that reflects the interest of our society to address the relationships that subjects have in their immediate environment. Although we are aware of the reluctant position of the Spanish Constitutional Court to consider as a fundamental right the right to family life despite being enshrined in Article 8 of the European Convention on Human Rights, it is questionable whether access to authorization for family reunification should be more uniform in terms of requirements related to nationality, employment or training of applicants in order to have an egalitarian character. The requirement of having resided one year in Spain to be able to request successful family reunification seems dispensable because if foreigners can obviate this requirement by having a certain status, its abolition would be feasible by equating all situations and benefiting foreigners in general. The achievement of this proposal would help to strengthen the family life of immigrants from the beginning of their life in Spain.

Keywords: family, immigrants, social integration, reunification

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Authors: Cassandra Seery

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During the twentieth century, the notion of child rights at the international level began with the League of Nations’ Geneva Declaration of the Rights of the Child 1924, culminating in the development and adoption of the UN Convention on the Rights of the Child (‘the Convention’) in 1989. A key foundation of child rights lies in the development of the ‘best interests of the child’ principle and its subsequent incorporation into domestic legislation across the globe. This principle has become a key concept in child rights protection and has become a widely recognized principle in the protection of child rights. However, despite its status as the primary operating standard in child and family law and its ‘deepening hold in domestic and international instruments’, the meaning of the ‘best interests of the child’ principle has been criticised as open-ended and vague. This paper explores the evolution and development of the principle in the context of parental separation at international law throughout the 21st century and identifies opportunities for the Nation States to further improve legislative responses in associated child protection cases. An extensive review of relevant United Nations documentation (including instruments, resolutions and comments, jurisprudence, reports, guidelines and policies, training materials and so forth) explores: (i) what progress has been made to further develop the principle at the international level with regard to parental separation; and (ii) what developments participating the Nation States should consider as part of future legal and social policy reforms in this space. It will highlight opportunities for improvement and explore the benefit and relevance of international approaches for the Nation States moving forward.

Keywords: international human rights, best interests of the child, legal and social policy, child rights

Procedia PDF Downloads 261

Authors: Samuel Holder

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Mass incarceration in the United States is a human rights issue, not merely a civil rights problem. It is a human rights problem not only because the United States has a high rate of incarceration, but more importantly because of who is jailed, for what purpose they are jailed and, ultimately, the manner in which they are jailed. To sustain the scale of the criminal justice system, one of the darker policies involves a multi-tiered strategy of fee- and fine-collection, targeting, usually, the most vulnerable and poor, many of whom run into the law via small offenses that do not rise to the level of felonies. This paper advances the notion that this debt collection-to-incarceration pipeline is tantamount to a modern-day debtors’ prison system. This article seeks to confront the thorny issue of incarceration via criminal justice debt from a human rights and cause-lawyering position. It will argue that a two-pronged cause-lawyering strategy: the first focused on traditional litigation along constitutional grounds, and the second, an advocacy approach rooted in grassroots campaigns, designed to shift the normative operation and understanding of the rights of marginalized and racialized offenders. Ultimately, the argument suggests that this approach will be effective in combatting the (often highly privatized) criminal justice debt system and bring the roles of 'incapacitation, rehabilitation, deterrence, and retribution' back into the criminal justice legal conversation. Part I contextualizes and historicizes the role of fees, penalties, and fines in American criminal justice. Part II examines the emergence of private industry in the criminal justice system, and its role in the acceleration of profit-driven criminal justice debt collection and incarceration. Part III addresses the failures of the federal and state law and legislation in combatting predatory incarceration and debt collection in the criminal justice system, particularly as waged against the indigent and/or ethnically or racially marginalized. Part IV examines the potential for traditional cause-lawyering litigation along constitutional grounds, using case studies across contexts for illustration. Finally, Part V will review the radical cause-lawyer’s role in the normative struggle in redefining prisoners’ rights and the rights of the marginalized (and racialized) as they intersect at the crossroads of criminal justice debt. This paper will conclude with recommendations for litigation and advocacy, drawing on hypotheses advanced, and informed by case studies from a variety of both national and international jurisdictions.

Keywords: cause-lawyering, criminal justice debt, human rights, judicial fees

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Authors: Dana Pugach, Michal Tamir

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Most criminal cases end with a plea agreement, an issue whose many aspects have been discussed extensively in legal literature. One important feature, however, has gained little notice, and that is crime victims’ place in plea agreements following the federal Crime Victims Rights Act of 2004. This law has provided victims some meaningful and potentially revolutionary rights, including the right to be heard in the proceeding and a right to appeal against a decision made while ignoring the victim’s rights. While victims’ rights literature has always emphasized the importance of such right, references to this provision in the general literature about plea agreements are sparse, if existing at all. Furthermore, there are a few cases only mentioning this right. This article purports to bridge between these two bodies of legal thinking – the vast literature concerning plea agreements and victims’ rights research– by using behavioral economics. The article will, firstly, trace the possible structural reasons for the failure of this right to be materialized. Relevant incentives of all actors involved will be identified as well as their inherent consequential processes that lead to the victims’ rights malfunction. Secondly, the article will use nudge theory in order to suggest solutions that will enhance incentives for the repeat players in the system (prosecution, judges, defense attorneys) and lead to the strengthening of weaker group’s interests – the crime victims. Behavioral psychology literature recognizes that the framework in which an individual confronts a decision can significantly influence his decision. Richard Thaler and Cass Sunstein developed the idea of ‘choice architecture’ - ‘the context in which people make decisions’ - which can be manipulated to make particular decisions more likely. Choice architectures can be changed by adjusting ‘nudges,’ influential factors that help shape human behavior, without negating their free choice. The nudges require decision makers to make choices instead of providing a familiar default option. In accordance with this theory, we suggest a rule, whereby a judge should inquire the victim’s view prior to accepting the plea. This suggestion leaves the judge’s discretion intact; while at the same time nudges her not to go directly to the default decision, i.e. automatically accepting the plea. Creating nudges that force actors to make choices is particularly significant when an actor intends to deviate from routine behaviors but experiences significant time constraints, as in the case of judges and plea bargains. The article finally recognizes some far reaching possible results of the suggestion. These include meaningful changes to the earlier stages of criminal process even before reaching court, in line with the current criticism of the plea agreements machinery.

Keywords: plea agreements, victims' rights, nudge theory, criminal justice

Procedia PDF Downloads 323

Authors: Carlos Joel Tchawouo Mbiada

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At the back of the apartheid era, South Africa embarked on a democratic drive of all its institution underpinned by a social justice perspective to eradicate past injustices. These democratic values based on fundamental human rights and equality informed all rights enshrined in the Constitution of the Republic of South Africa, 1996. This means that all rights are therefore infused by social justice perspective and labour rights are no exception. Labour law is therefore regulated to the extent that it is viewed as too rigid. Hence a call for more flexibility to enhance investment and boost job creation. This view articulated by the Free Market Foundation fell on deaf ears as the opponents believe in what is termed regulated flexibility which affords greater protection to vulnerable workers while promoting business opportunities and investment. The question that this paper seeks to examine is to what extent the regulation of labour law will go to protect employees. This question is prompted by the recent Constitutional Court’s judgment of National Union of Metalworkers of South Africa v Trenstar which barred the employer from employing labour replacement in response to the strike action by its employees. The question whether employers may use replacement labour and have recourse to lock-outs in response to strike action is considered in the context of the dichotomy between the Free market foundation and social justice perspectives which are at loggerheads in the South African collective bargaining process. With the current unemployment rate soaring constantly, the aftermath of the Covid 19 pandemic, the effects of the war in Ukraine and lately the financial burden of load shedding on companies to run their businesses, this paper argues for a policy shift toward deregulation or a lesser state and judiciary intervention. This initiative will relieve the burden on companies to run a viable business while at the same time protecting existing jobs.

Keywords: labour law, replacement labour, right to strike, free market foundation perspective, social justice perspective

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Authors: Samia Al-Shayban

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Conventionally, Fielding Author’s Farce is read as an attack on literary and theatrical establishment. This paper attempt to read it as a disguised scathing political attack upon, King George II, his court and administration. Fielding achieves his design through complex dramatization based on implicit connections between King George II and the poor poet Luckless who shifts his stand from defending the liberties of the authors into becoming one of their oppressors. Through the same connection, the king is accused of being the originator and protector of literary corruption. To strengthen the attack against the king, the court of nonsense which appeared in Luckless’ play is connected to George II’s court through the presence of opera and ignorance. Thus, Fielding’s literary dramatization is used as a medium to expose the corrupting influence of the ruling elite. The King, his court and administration are all complacent in devaluing the English theatre and turning it into a circus that generate nothing but ignorance and poverty. This practice is deliberately designed to keep people ignorant and authors poor so they remain unable to challenge their corrupt politics.

Keywords: fielding, King George II, ignorance, theatre, plays

Procedia PDF Downloads 579