Search results for: European Court of Human Rights

Authors: Mohsen Nouraei, M. Amouei

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Islamic studies are considered in both the Quran and Hadith. Hadith is defined as a set of reports that narrated the words, and behaviors, of infallible persons such as the holy Prophet (pbuh) or the Infallible Imams (as). The issue of biodiversity which is the one of the most important environmental aspects is considered in the field of Hadith. The present paper has investigated biodiversity on the basis of descriptive-analytical methods and with the approach of library-documentary. The household of the Prophet (as) have referred biodiversity that were included diversity of animals, plants, climate etc. In addition to, they also have emphasized on the human need to keep diversity and no damage. It should be noted that they have expressed the rights of the animals and plants for correct using of human, so that human can use these rights in conservation of diversity and their generation.

Keywords: biodiversity, conservation of biodiversity, degradation of biodiversity, extinction of biodiversity

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Authors: Miguel Manero De Lemos

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The ‘innovative and creative’ seminal decision of the Special Tribunal for Lebanon (STL) was not welcomed by academic opinion. The court recognized that terrorism is a crime under international law in times of peace. Scholars widely – and sometimes aggressively – criticize this conclusion. This article asserts that, while some aspects of the decision of the STL might be defective, the basic premise, that it is indeed such a crime, is sound. This article delves into the method that the court used to attain such an outcome and explains why the conclusion of the court is correct, albeit the use of a different method is to be preferred. It also argues that subsequent developments leave little room to keep arguing that there is no international crime of terrorism.

Keywords: terrorism, STL, crime, international criminal law

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Authors: Ankita Shanker, Angus Nurse

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The notion of animal rights is an emerging trend in various spaces, including judicial and societal discourse. But one of the key purposes of recognizing the fundamental rights of anyone is their de-objectification. Animals are a prime example of a group that has rights that are neither recognized nor protected in any meaningful way, and anything that purports differently fails to ameliorate this because it still objectifies animals. Animals are currently treated by law and society as commodities with primarily (though not exclusively) instrumental value to some other rights-holder, such as humans or nature. So most protections that are afforded to them are done so in furtherance of the interests that they allegedly further, be it social morality or environmental protection. Animal rights are thus often seen as an application or extension of the rights of humans or, more commonly, the rights of nature. What this means is that animal rights are not always protected or even recognized in their own regard, but as stemming from some other reason, or worse, instrumentally as means to some other ends. This has two identifiable effects from a legal perspective: animal rights are not seen as inherently justified and are not seen as inherently valuable. Which in turn means that there can be no fundamental protection of animal rights. In other words, judicial protection does not always entail protection of animal ‘rights’ qua animal rights, which is needed for any meaningful protections to be afforded to animals. But the effects of this legal paradigm do not end at the legal status of animals. Because this status, in turn, affects how persons and the societies of which they form part see animals as a part of the rights of others, such as humans or nature, or as valuable only insofar as they further these rights, as opposed to as individuals with inherent worth and value deserving of protection regardless of their instrumental usefulness to these other objectives. This does nothing to truly de-objectify animals. Because even though most people would agree that animals are not objects, they continue to treat them as such wherever it serves them. For individuals and society to resolve, this inconsistency between stance and actions is for them to believe that animals are more than objects on a psychological and societal level. In this paper, we examine the implications of this perception of animals and their rights on the legal protections afforded to them and on the minds of individuals and civil society. We also argue that a change in the legal and societal status of animals can be brought about only through judicial, psychological, and sociological acknowledgment that animals have inherent value and deserve protection on this basis. Animal rights derived in such a way would not need to place reliance on other justifications and would not be subject to subjugation to other rights should a conflict arise.

Keywords: animal rights law, animal protection laws, psycho-socio-legal studies, animal rights, human rights, rights of nature

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Authors: Aileen Editha

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The legal recognition of property rights over human genes is a divisive topic to which there is no resolution. As a frequently discussed topic, scholars and practitioners often highlight the inadequacies of a proprietary regime. However, little has been said in regard to the nature of human genetic materials (HGMs). This paper proposes approaching the issue of property over HGMs from an alternative perspective that looks at the personal and social value and valuation of HGMs. This paper will highlight how the unique and unresolved status of HGMs is incompatible with the main tenets of property and, consequently, contributes to legal ambiguity and uncertainty in the regulation of property rights over human genes. HGMs are perceived as part of nature and a free-for-all while also being within an individual’s private sphere. Additionally, it is also considered to occupy a unique “not-private-nor-public” status. This limbo-like position clashes with property’s fundamental characteristic that relies heavily on a clear public/private dichotomy. Moreover, as property is intrinsically linked to the legal recognition of one’s personhood, this irresolution benefits some while disadvantages others. In particular, it demands the publicization of once-private genes for the “common good” but subsequently encourages privatization (through labor) of these now-public genes. This results in the gain of some (already privileged) individuals while enabling the disenfranchisement of members of minority groups, such as Indigenous communities. This paper will discuss real and intellectual property rights over human genes, such as the right to income or patent rights, in Canada and the US. This paper advocates for a sui generis approach to governing rights and interests over human genes that would not rely on having a strict public/private dichotomy. Not only would this improve legal certainty and clarity, but it would also alleviate—or, at the very least, minimize—the role that the current law plays in further entrenching existing systemic inequalities. Despite the specificity of this topic, this paper argues that there are broader lessons to be learned. This issue is an insightful case study on the interconnection of various principles in law, society, and property, and what must be done when discordance between one or more of those principles has detrimental societal outcomes. Ultimately, it must be remembered that property is an adaptable and malleable instrument that can be developed to ensure it contributes to equity and flourishing.

Keywords: property rights, human genetic materials, critical legal scholarship, systemic inequalities

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Authors: Eliziane Navarro, Aparecida Citta

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Child of the dark is the work of the Brazilian author Carolina Maria de Jesus published at the first time by Ática & Francisco Alves in 1960. It is, mostly, a story of lack of rights. It lacks to men who live in the slums what is essential in order to take advantage of the privilege of rationality to develop themselves as civilized humans. It is, therefore, in the withholding of the basic rights that inequality finds space to build itself to be the main misery on Earth. Antonio Candido, a Brazilian sociologist, claims that it is the right to literature has the ability to humanize men, once the aptitude to create fiction and fable is essential to the social balance. Hence, for the forming role that literature holds, it must be thought as the number of rights that assure human dignity, such as housing, education, health, freedom, etc. When talking about her routine, Carolina puts in evidence something that has great influence over the formation of human beings, contributing to the way they live: the slum. Even though it happens in a distinct way and using her linguistics variation, Carolina writes about something that will only be discussed later on Brazil’s Cities Statute and Ermia Maricato: the right to the city, and how the slums are, although inserted in the city, an attachment, an illegal city, a dismissing room. It interests ourselves, for that matter, in this work, to analyse how the deprivation of the rights to the city and literature, detailed in Carolina’s journal, conditions human beings to a life where the instincts overcome the social values.

Keywords: Child of the dark, slum, Brazil, architecture and literature

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Authors: Tholaine Matadi

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South Africa is a democratic country with a historical record of racially-motivated marginalisation and exclusion of the majority. During the apartheid era the country was run along pieces of legislation and policies based on racial segregation. The system held a tight clamp on interracial mixing which forced people to remain in segregated areas. For example, a citizen from the Indian community could not own property in an area allocated to white people. In this way, a great majority of people were denied basic human rights. Now, there is a supreme constitution with an entrenched justiciable Bill of Rights founded on democratic values of social justice, human dignity, equality and the advancement of human rights and freedoms. The Constitution also enshrines the values of non-racialism and non-sexism. The Constitutional Court has the power to declare unconstitutional any law or conduct considered to be inconsistent with it. Now, more than two decades down the line, despite the abolition of apartheid, there is evidence that South Africa still experiences hate crimes which violate the entrenched right of vulnerable groups not to be discriminated against on the basis of race, sexual orientation, gender, national origin, occupation, or disability. To remedy this mischief parliament has responded by drafting the Prevention and Combatting of Hate Crimes and Hate Speech Bill. The Bill has been disseminated for public comment and suggestions. It is intended to combat hate crimes and hate speech based on sheer prejudice. The other purpose of the Bill is to bring South Africa in line with international human rights instruments against racism, racial discrimination, xenophobia and related expressions of intolerance identified in several international instruments. It is against this backdrop that this paper intends to analyse the impact of the Bill on the rights to human dignity, equality, and freedom. This study is significant because the Bill was highly contested and creates a huge debate. This study relies on a qualitative evaluative approach based on desktop and library research. The article recurs to primary and secondary sources. For comparative purpose, the paper compares South Africa with countries such as Australia, Canada, Kenya, Cuba, and United Kingdom which have criminalised hate crimes and hate speech. The finding from this study is that despite the Bill’s expressed positive intentions, this draft legislation is problematic for several reasons. The main reason is that it generates considerable controversy mostly because it is considered to infringe the right to freedom of expression. Though the author suggests that the Bill should not be rejected in its entirety, she notes the brutal psychological effect of hate crimes on their direct victims and the writer emphasises that a legislature can succeed to combat hate-crimes only if it provides for them as a separate stand-alone category of offences. In view of these findings, the study recommended that since hate speech clauses have a negative impact on freedom of expression it can be promulgated, subject to the legislature enacting the Prevention and Combatting of Hate-Crimes Bill as a stand-alone law which criminalises hate crimes.

Keywords: freedom of expression, hate crimes, hate speech, human dignity

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Authors: Dahiru Jafaru Usman

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Nigerian courts have been sanctioned by a plethora of authorities to always employ the literal rule in interpreting statutes where the language of the statute is clear and unambiguous. This cardinal rule of interpretation appears not to be employed on Shari'ah issues in Nigeria. This is more pronounced in the interpretation of the jurisdiction of the Shari'ah Court of Appeal (hereinafter the court). The paper doctrinally assesses the judicial attitude of Nigerian appellate courts towards the construction of Section 277 of the 1999 Constitution as amended and other relevant statutory enactments by the State Houses of Assembly. The paper argues that a careful examination of the wordings of the constitution on the jurisdiction of the court literally reveals the intention of the constitutional drafters empowering the National Assembly and States' House of Assemblies to add to the itemised jurisdictional areas of the court other matters not mentioned. The paper found that the appellate courts failed in their construction of the constitutional provisions to accord the words and phrases used in the establishment, jurisdiction, and quorum sections of the court their ordinary and grammatical meaning. This results in consistent limitation of the jurisdiction of the court to matters of Islamic personal law. This remains so even when Decree No. 26 of 1986 was in force suspending and amending the provisions of the 1979 Constitution deleting the word 'personal' in the suspended Nigerian Constitutions. In order not to render section 277 futile, the paper recommends that appellate courts in Nigeria should as required by rules of statutory interpretation adopt literal and ordinary grammatical meaning in interpreting constitutional provisions on the jurisdiction of the court. It is further recommended that appellate courts must interpret the provisions of the 1999 constitution in a manner not to frustrate the several decades' yearnings of the Muslims for a court that would hear all their appellate criminal and civil matters on the path of Shari'ah from the lowest court to the highest. This is a duty the Nigerian Supreme Court placed on their shoulders.

Keywords: interpretation of statutes, jurisdiction, literal rule, Nigeria, Shari'ah Court of Appeal, 1999 Constitution

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Authors: Aneesa Shafi

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Reproduction is a complex term in a setting where it is continuously being shaped by epistemological shifts in knowledge. It denotes not just fertility, birth and childcare related practices but also the ideas that shape those practices. These ideas and practices figure into understandings of social and cultural renewal. Patriarchy continues to be a dominating force in the formation of these ideas and practices. Contemporary times are characterized by the resurgence of the whims of patriarchal politics in delineating the margins of women’s health care. This has further emboldened the struggle for reproductive rights on the global stage. The paper examines the subordination of the right to bodily autonomy of women within the ambit of their reproductive rights. Reproductive rights are recognized human rights and women’s rights. Why these rights of women face stiff opposition is established, as is the structure that creates hurdles to their enjoyment. The negotiation of this structure in the everyday life through women’s agency is also established. The reproductive sphere includes not just the process of reproduction but also social reproduction- domestic work, spheres of production and reproduction, population and birth (control) issues.

Keywords: patriarchy, women, reproduction, gender

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Authors: Mohsen Nouraei, Maryam Amouei

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Islamic studies are considered in both the Quran and Hadith. Hadith is defined as a set of reports that narrated the words and behaviors of infallible persons such as the holy Prophet (pbuh) or the Infallible Imams (as). The issue of biodiversity which is the one of the most important environmental aspects is considered in the field of Hadith. The present paper has investigated biodiversity on the basis of descriptive-analytical methods and with the approach of library-documentary. The household of the Prophet (as) have referred biodiversity that were included diversity of animals, plants, climate etc. In addition, they also have emphasized on the human need to keep diversity and no damage. It should be noted that they have expressed the rights of the animals and plants for correct using of human, so that human can use these rights in conservation of diversity and their generation.

Keywords: biodiversity, conservation of biodiversity, degradation of biodiversity, extinction of biodiversity

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Authors: Sema Cortoglu Koca

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Intellectual and industrial property rules, have a substantial effect on the sustainable development. Intellectual and industrial property rights, as temporary privileges over the products of intellectual activity, determine the supervision of information and technology. The level and scope of intellectual property protection thus influence the flow of technology between developed and developing countries. In addition, intellectual and industrial property rights are based on the notion of balance. Since they are time-limited rights, they reconcile private and public benefits. That is, intellectual and industrial property rights respond to both private interests and public interests by rewarding innovators and by promoting the dissemination of ideas, respectively. Intellectual and industrial property rights can, therefore, be a tool for sustainable development. If countries can balance their private and public interests according to their particular context and circumstances, they can ensure the intellectual and industrial property which promotes innovation and technology transfer relevant for them. People, enterprises and countries who need technology, can transfer developed technology which is acquired by people, enterprises and countries so as to decrease their technological necessity and improve their technology. Because of the significance of intellectual and industrial property rights on the technology transfer law as mentioned above, this paper is confined to intellectual and industrial property agreements especially technology transfer contracts. These are license contract, know-how contract, franchise agreement, joint venture agreement, management agreement, research and development agreement. In Turkey, technology transfer law is still a developing subject. For developing countries, technology transfer regulations are very important for their private international law because these countries do not know which technology transfer law is applicable when conflicts arise. In most technology transfer contracts having international elements, the parties choose a law to govern their contracts. Where the parties do not choose a law, either expressly or impliedly, and matters which is not excluded in party autonomy, the court has to determine the applicable law to contracts in a matter of capacity, material, the formal and essential validity of contracts. For determining the proper law of technology transfer contracts, it is tried to build a rule for applying all technology transfer contracts. This paper is confined to the applicable law to intellectual and industrial property agreements according to ‘5718 Turkish Act on Private International Law and Civil Procedure’ and ‘Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)’. Like these complex contracts, to find a rule can be really difficult. We can arrange technology transfer contracts in groups, and we can determine the rule and connecting factors to these groups. For the contracts which are not included in these groups, we can determine a special rule considering the characteristics of the contract.

Keywords: intellectual and industrial property agreements, Rome I regulation, technology transfer, Turkish act on private international law and civil procedure

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Authors: Cinzia Valente

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Over the last few years, national legislators have been forced to deal with social changes that have had important repercussions in family law and children’s law. This growing focus on minors has provoked important reforms, specifically on issues relating to the welfare and protection of children. My presentation focuses on the issue of migrant children in particular I refer to unaccompanied children, or ‘children on the move’, or separate children or any other term defining migrant minors who cross national borders seeking protection or better opportunities. They arrive often illegally, on the European territory without a responsible adult who take care of them. There is a common assumption that migrants are running away from conflicts, poverty and human rights abuse and they arrive in a foreign country hoping a better life; children without persons who takes care of them encounter some difficulties in their integration in the host country. The migration flows recorded in recent decades towards EU countries, and Italy in particular, have imposed an intense pressure to modernize institutions, services and specific legal frameworks, with the aim of responding adequately to the needs of foreign individuals, as well as ensuring a good level of living standards and facilitating integration, especially for migrant children. The object of my paper is the analysis of the Italian rules, practices and services existing in favor of unaccompanied children (foster care, reunification, acquisition of citizenship and other) in comparison with other European legal systems on the same thematic with a comparative method. Highlighting European standards to find common principles for the best solution to children's problems is the conclusive aim of my presentation.

Keywords: Children , Family Law, Migration , Uniform Law

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Authors: Xiaofei Zhu

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As a 'weapon of the weak', the Public Interest Law can provide a better perspective for the cause of gender justice. In recent years, the legal practice of single female reproductive rights in China has already possessed the elements of public interest law activities and the possibility of public interest law operation. Through the general operating procedures of public interest law practice, that is, from the choice of subject, the planning of the case, the operation of the strategy and the later development, the paper analyzes the gains and losses of the legal practice of single female reproductive rights in China, and puts forward some ideas on its possible operation path. On this basis, it is believed that the cause of women's rights should be carried out under the broad human rights perspective; it is necessary to realize the particularity of different types of women's rights protection practice; the practice of public interest law needs to accurately grasp the constituent elements of all aspects of the case, and strive to find the opportunities of institutional and social change; the practice of public welfare law of gender justice should be carried out from a long-term perspective.

Keywords: single women’s reproductive rights, public interest law, gender justice, legal strategies, legal change

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Authors: Ni Luh Bayu PurwaEka Payani, Destin Ristanti

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Every child has the right to be healthy, and it is a parents’ obligation to fulfill their rights. In order to be healthy and prevented from the outbreak of infectious diseases, some vaccines are required. However, there are groups of people, who consider that vaccines consist of religiously forbidden ingredients. The government of Indonesia legally set the rule that all children must be vaccinated. However, merely based on religious beliefs and not supported by scientific evidence, these people ignore the vaccination. As a result, this anti-vaccine movement caused diphtheria outbreak in 2017. Categorized as a vulnerable group, child`s rights must be fulfilled in any forms. This paper tries to analyze the contradiction between religious beliefs and the fulfillment of child`s rights. Furthermore, it tries to identify the anti-vaccine movement as a form of human rights violation, especially regarding child's rights. This has been done by examining the event of the outbreak of diphtheria in 20 provinces of Indonesia. Furthermore, interview and literature reviews have been done to support the analysis. Through this process, it becomes clear that the anti-vaccine movements driven by religious beliefs did influence the outbreak of diphtheria. Hence, the anti-vaccine movements ignore the long-term effects not only on their own children’s health but also others.

Keywords: anti-vaccine movement, child rights, religious beliefs, right to health

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Authors: Aklima Jesmin, Ubaidur Rob, M. Ashrafur Rahman

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Rohingya population of Arakan state in Myanmar are one the most persecuted ethnic minorities in this 21st century. According to the Universal Declaration of Human Rights (UDHR), all human beings are born free, equal in dignity and rights. However, these populations are systematically excluded from this universal proclamation of human rights as they are Rohingya, which signify ‘other’. Based on the accessible and available literatures about Rohingya issue, this study firstly found there are chronological pattern of human rights violations against the ethnic Rohingya which follows the pathology of the Holocaust in this 21st century of human civilization. These violations have been possible due to modern technology, bureaucracy which has been performed through authorization, routinization and dehumanization; not only in formal institutions but in the society as a whole. This kind of apparently never-ending situation poses any author with the problem of available many scientific articles. The most important sources are, therefore the international daily newspapers, social media and official webpage of the non-state actors for nitty-gritty day to day update. Although it challenges the validity and objectivity of the information, but to address the critical ongoing human rights violations against Rohingya population can become a base for further work on this issue. One of the aspects of this paper is to accommodate all the social movements since August 2017 to date. The findings of this paper is that even though it seemed only human rights violations occurred against Rohingya historically but, simultaneously the process of social movements had also started, can be traced more after the military campaign in 2017. Therefore, the Rohingya crisis can be conceptualized within one ‘campaign’ movement for justice, not as episodic events, especially within the Political Process Model than any other social movement theories. This model identifies that the role of international political movements as well as the role of non-state actors are more powerful than any other episodes of violence conducted against Rohinyga in reframing issue, blaming and shaming to Myanmar government and creating the strategic opportunities for social changes. The lack of empowerment of the affected Rohingya population has been found as the loop to utilize this strategic opportunity. Their lack of empowerment can also affect their capacity to reframe their rights and to manage the campaign for their justice. Therefore, this should be placed at the heart of the international policy agenda within the broader socio-political movement for the justice of Rohingya population. Without ensuring human rights of Rohingya population, achieving the promise of the united nation’s sustainable development goals - no one would be excluded – will be impossible.

Keywords: civilization, holocaust, human rights violation, military campaign, political process model, Rohingya population, sustainable development goal, social justice, social movement, strategic opportunity

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Authors: Michael Augustus Akagbor

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Same-sex relationships have always existed in Ghana. In coastal towns such as James Town in the heart of the country’s capital, persons who were sexually different and attracted to members of their own sex were able to live their lives openly as queer persons without any fear for their lives. Since 2006, this idyllic existence has been under attack, with LGBTQ+ communities suffering violence and discrimination. This paper highlights the lived experiences of the LGBTIQ+ community in Ghana against the backdrop of the anti-gay bill - The Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 (now renamed the Human Sexual Rights and Family Values Bill, 2021), currently before Parliament, introduced by eight members of Parliament as a Private Members’ Bill, and its implications for the LGBTQ+ community. The paper makes recommendations to key stakeholders on strategies to counter the cultural and religious arguments/strategies and activism of the anti-LGBTQ+ movement in Ghana. It relied on secondary data from a variety of sources, including the Bill before Parliament, media reports, and baseline surveys and studies conducted by LGBTQ organizations and other Civil Society Organizations (CSOs) in Ghana and elsewhere.

Keywords: sexual rights, promotion, family values, lgbtq+, ghana, discrimination

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Authors: Francis Jegede

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This paper examines essential issues relating to the rise and nature of violent extremism involving non-state actors and groups in the early 21^st century. The global trends in terrorism and violent extremism are examined in relation to Western governments’ counter terror operations. The paper analyses the existing legal framework for fighting violent extremism and terrorism and highlights the inherent limitations of the current International Law of War in dealing with the growing challenges posed by terrorists and violent extremist groups. The paper discusses how terrorist groups use civilians, women and children as tools and weapon of war to fuel their campaign of terror and suggests ways in which the international community could deal with the challenge of fighting terrorist groups without putting civilians, women and children in harm way. The paper emphasises the need to uphold human rights values and respect for the law of war in our response to global terrorism. The paper poses the question as to whether the current legal framework for dealing with terrorist groups is sufficient without contravening the essential provisions and ethos of the International Law of War and Human Rights. While the paper explains how terrorist groups flagrantly disregard the rule of law and disrespect human rights in their campaign of terror, it also notes instances in which the current Western strategy in fighting terrorism may be viewed or considered as conflicting with human rights and international law.

Keywords: terrorism, law of war, international law, violent extremism

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Authors: Deike Janssen

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In the scenery of the Tyrolean mountains, at an altitude of 1300 meters, stands a building. Residents and activists call it a prison. However, it is not a prison -according to authorities, it is a 'Return Counseling Facility' where migrants and refugees should be "motivated" to return "voluntary" to their countries of origin. This paper argues that the geographical location of the camp functions as a site of exclusion, isolation, and coercion where no one can decide “voluntary” to return, but where people are brought to despair to leave Austria. Through a qualitative case study, this paper documents the heavy impact of offshore detention on the mental, physical and social state of the residents and a variety of human rights problems in the centre. Different developments at the Return Counselling Facility and the law that back up the centre uncover a worrying dynamic that deliberately accepts human rights problems in order to enforce borders, a policy that disregards humanitarian, legal, and ethical stands in order to deport people at all hazards. It, therefore, can be seen as a creative and ultimate exercise of state power, which uses isolated locations to control migration. While the analysis revises the micro and macro implications of the facility and, therefore, the legal and political facets, it also sheds light on the role of the civil society, which tries to increase through constant and collective efforts the human rights efforts of the government.

Keywords: deportation, human rights, migration, refugee detention, voluntary return

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Authors: Ronel Solis, Leonardo Collado

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Migration law in the Republic of Panama has been regulated mainly by the executive branch. This has created a crisis not only institutional but also social because the evolution of these norms has rested greatly from the discretion of the government in office. This has created instability in immigration regulation and more now, with the migration crisis of which Panama is also part. Different migration policies have been established. The most recent is that of the controlled migration flow, in which, for humanitarian reasons, migrants move from the border with Colombia to the border with Costa Rica. Unfortunately, such control is not enough, and in some cases, unprotected migrants have been confined for months, their passports have been withheld, and no recognition of their rights is offered. The Inter-American Court of Human Rights has condemned Panama for the unfair detention of an irregular migrant, who was detained for two years in Panamanian prisons, without having committed a crime and without accessing a just defense. This is the case Vélez Loor vs. the Republic of Panama. Uncontrollable migration has been putting pressure on Panamanian public health services. The recent denunciation of HIV-related NGOs that warns that there are hundreds of foreigners who receive expensive antiretroviral therapy in Panama is serious, and several of them are irregular migrants. On the other hand, there are no border control posts with the Republic of Colombia, because it is a jungle area and migrants are exposed to arms and drug trafficking, and unfortunately, also to prostitution. Government entities such as the border police service have provided humanitarian support to migrants on the border with Colombia, although it is not their administrative function, and various entities discuss who should address this crisis. However, few economic resources are allocated by the government to solve this problem, especially with the recent mass migration of Venezuelans who have fled their country. The establishment of a migratory normative code is necessary to establish uniformity in the recognition and application of migratory rights. In this way, dependence on the changing migration policies of the different Panamanian governments would be eliminated, and the rights of migrants and nationals would be guaranteed.

Keywords: executive branch, irregular migration, migration code, Republic of Panama

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Authors: Larysa Novak-Kalyayeva, Aleksander Kuczabski, Orystlava Sydorchuk, Nataliia Fersman, Tatyana Zemlinskaia

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The article presents the results of the creative analysis and comparison of trends in the development of the theory of public administration during the period from the second half of the 20^th to the beginning of the 21^st century. The process of conceptualization of the priorities of public administration in the dynamics of reforming was held under the influence of such factors as globalization, integration, information and technological changes and human rights is examined. The priorities of the social state in the concepts of the second half of the 20^th century are studied. Peculiar approaches to determining the priorities of public administration in the countries of "Soviet dictatorship" in Central and Eastern Europe in the same period are outlined. Particular attention is paid to the priorities of public administration regarding the interaction between public power and society and the development of conceptual foundations for the modern managerial process. There is a thought that the dynamics of the formation of concepts of the European governance is characterized by the sequence of priorities: from socio-economic and moral-ethical to organizational-procedural and non-hierarchical ones. The priorities of the "welfare state" were focused on the decent level of material wellbeing of population. At the same time, the conception of "minimal state" emphasized priorities of human responsibility for their own fate under the conditions of minimal state protection. Later on, the emphasis was placed on horizontal ties and redistribution of powers and competences of "effective state" with its developed procedures and limits of responsibility at all levels of government and in close cooperation with the civil society. The priorities of the contemporary period are concentrated on human rights in the concepts of "good governance" and all the following ones, which recognize the absolute priority of public administration with compliance, provision and protection of human rights. There is a proved point of view that civilizational changes taking place under the influence of information and technological imperatives also stipulate changes in priorities, redistribution of emphases and update principles of managerial concepts on the basis of publicity, transparency, departure from traditional forms of hierarchy and control in favor of interactivity and inter-sectoral interaction, decentralization and humanization of managerial processes. The necessity to permanently carry out the reorganization, by establishing the interaction between different participants of public power and social relations, to establish a balance between political forces and social interests on the basis of mutual trust and mutual understanding determines changes of social, political, economic and humanitarian paradigms of public administration and their theoretical comprehension. The further studies of theoretical foundations of modern public administration in interdisciplinary discourse in the context of ambiguous consequences of the globalizational and integrational processes of modern European state-building would be advisable. This is especially true during the period of political transformations and economic crises which are the characteristic of the contemporary Europe, especially for democratic transition countries.

Keywords: concepts of public administration, democratic transition countries, human rights, the priorities of public administration, theory of public administration

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Authors: Valentina Dotto

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Climate change cases used to take the form of statutory disputes rather than constitutional or common law disputes. This changed in 2015, with the Urgenda Climate case in the Netherlands (Urgenda Foundation v. The State of the Netherlands, C/09/456689/HAZA 13-1396) and, the Juliana case in the U.S. (United States v. U.S. District Court for District of Oregon, 17-71692, 9th Cir.). The two cases represent a new type of climate litigation, the claims brought against the federal government were in fact grounded in constitutional rights. The complaints used the Doctrine of Public Trust as a cornerstone for the lawsuits asserting that government's actions against climate change failed to protect essential public trust resources; thus, violating a generation's constitutional rights to life, liberty, and property. The Public Trust Doctrine –a quintessentially American legal concept-, reserved to the States by virtue of the 9th and 10th amendment of the federal Constitution, gives them considerable jurisdiction over natural resources and has been refined by a number of Supreme Court rulings. The Juliana case exemplifies the Doctrine’s evolutionary nature because it attempts to apply it to the federal government, and establish a right to a climate system capable of sustaining human life as a fundamental right protected by a substantive due process. Furthermore, the flexibility of the Doctrine makes it permissible to be applied to a variety of different legal systems as in the Urgenda case. At the very heart of the lawsuits stands the question of who owns the Earth resources and, to what extent the general public can claim the services that the Earth provides as common property. By employing the widest possible definition of the Doctrine of Public Trust these lawsuits tried to redefine environmental resources as a collective right of all people. By doing case analysis, the paper explores how these cases can contribute to widening the public access to information and broadening the public voice in decision making as well as providing a precedent to equal access in seeking justice and redress from environmental failures.

Keywords: climate change, doctrine of public trust, environmental democracy, Juliana case, Urgenda climate case

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Authors: Aleburu Rufus Edeki

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The activities of Boko Haram terrorist group have become worrisome in Nigeria. Boko Haram killed innocent civilians, destroyed schools, churches, military barracks, police stations, and other government establishments. The federal government of Nigerian Military engaged in counter-insurgency to curtail the activities of Boko Haram militant. The engagement of the military led to mass killing across the Northeast region. The reported cases of mass-killing led to petition written to the International Criminal Court by the civil society organization as a result of denial by the military authorities of their involvement. The investigation carried out by the International Criminal Court awash by denial of military involvement in war crimes. As a result of this denial, the ICC called for further investigation of war crimes by the military. This study was carried out among fifty-eight participants. In-depth interviews were conducted among the following participants: civilians 41; human rights commission 5 and civil society 12. This study revealed that professional ethics is associated with denial of military involvement in mass killing in the region. This study also revealed that denial is associated with personality. It was also found that social attributes such as trauma, shame, ostracism, criticism, and punishment are found with denial. It is therefore concluded in this study that protection is needed for war actors, so that situation of denial is minimal in post-conflict truth findings.

Keywords: Boko Haram, crime, insurgence, war

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Authors: Pearl K. Atuhaire, Sylvia Kaye

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While the need for equal access to civil, political as well as economic, social and cultural rights is clear under the international law, the adoption of the Convention on the Elimination of all forms of Discrimination against women in 1979 made this even clearer. Despite this positive progress, the abuse of refugee women's rights is one of the basic underlying root causes of their marginalisation and violence in their countries of asylum. This paper presents a critical review on the development of refugee women's rights at the international levels and national levels. It provides an array of scholarly literature on this issue and examines the measures taken by the international community to curb the problem of violence against women in their various provisions through the instruments set. It is cognizant of the fact that even if conflict affects both refugee women and men, the effects on women refugees are deep-reaching, due to the cultural strongholds they face. An important aspect of this paper is that it is conceptualised against the fact that refugee women face the problem of sexual and gender based first as refugees and second as women, yet, their rights are stumbled upon. Often times they have been rendered "worthless victims" who are only in need of humanitarian assistance than active participants committed to change their plight through their participation in political, economic and social participation in their societies. Scholars have taken notice of the fact that women's rights in refugee settings have been marginalized and call for a need to incorporate their perspectives in the planning and management of refugee settings in which they live. Underpinning this discussion is feminism theory which gives a clear understanding of the root cause of refugee women's problems. Finally, this paper suggests that these policies should be translated into action at local, national international and regional levels to ensure sustainable peace.

Keywords: feminism theory, human rights, refugee women, sexual and gender based violence

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Authors: M. L. Mesquita, V. H. Ferreira, C. M. Cebola

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Mediation is an increasingly important mechanism, particularly in the European context, as demonstrated, for example, by the publication by the European Union of the Directive 2008/52/EC on certain aspects of mediation in civil and mercantile matters. Developments in international trade and globalization in this new century have led to an increase of the number of litigations, often cross-border, and the courts have failed to respond adequately. From the economic point of view, competitive negotiation can generate negative external effects in social terms. Not always the solution found in court is the most efficient solution taking into account all elements of society. On the other hand, the administration of justice adds in economic terms transaction costs that can be mitigated by the application of other forms of conflict resolution, such as mediation. In this paper, the economic benefits of mediation will be analysed in the light of various studies on the functioning of justice. Several theoretical arguments will be confronted with empirical studies to demonstrate that mediation has significant positive economic effects. In the Portuguese legal system, legislative frameworks for mediation display a state committed to creating a new architecture for the administration of justice, based on the construction of a multi-faceted legal system for dispute resolution mechanisms. Understanding the way in which the system of mediation in Portugal was introduced, allows us to point out that our internal ordering is creating the legal instruments which can assist citizens in the effective protection of their rights. However, data on the use of mediation in concrete proceedings and the consequent effectiveness of mediation in settling disputes, reveal a mechanism that is still far from the ideal results that were initially sought.

Keywords: access to justice, alternative dispute resolution, mediation, litigation

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Authors: Jojo Y. C. Mo

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Memories are good. They remind us of people, places and experiences that we cherish. But memories cannot be changed and there may well be memories that we do not want to remember. This is particularly true in relation to information which causes us embarrassment and humiliation or simply because it is private – we all want to erase or delete such information. This desire to delete is recently recognised by the Court of Justice of the European Union in the 2014 case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González in which the court ordered Google to remove links to some information about the complainant which he wished to be removed. This so-called ‘right to be forgotten’ received serious attention and significantly, the European Council and the European Parliament enacted the General Data Protection Regulation (GDPR) to provide a more structured and normative framework for implementation of right to be forgotten across the EU. This development in data protection laws will, undoubtedly, have significant impact on companies and co-operations not just within the EU but outside as well. Hong Kong, being one of the world’s leading financial and commercial center as well as one of the first jurisdictions in Asia to implement a comprehensive piece of data protection legislation, is therefore a jurisdiction that is worth looking into. This article/project aims to investigate the following: a) whether there is a right to be forgotten under the existing Hong Kong data protection legislation b) if not, whether such a provision is necessary and why. This article utilises a comparative methodology based on a study of primary and secondary resources, including scholarly articles, government and law commission reports and working papers and relevant international treaties, constitutional documents, case law and legislation. The author will primarily engage literature and case-law review as well as comparative and doctrinal analyses. The completion of this article will provide privacy researchers with more concrete principles and data to conduct further research on privacy and data protection in Hong Kong and internationally and will provide a basis for policy makers in assessing the rationale and need for a right to be forgotten in Hong Kong.

Keywords: privacy, right to be forgotten, data protection, Hong Kong

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Authors: Claudia Huerta, Pepijn Doornenbal, Walaa Elsiddig

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Rising waves of nationalism around the world have led first-world migration receiving countries to exploit the ambiguity of international refugee law and establish asylum application processes that deter applications, allow for bureaucratic deniability, and violate human rights. This case study of Greek asylum application practices argues that the 'pre-application' asylum process in Greece violates the spirit of international law by making it incredibly difficult for potential asylum seekers to apply for asylum, in essence violating the human rights of thousands of asylum seekers. This study’s focus is on the Greek mainland’s asylum 'pre-application' process, which in 2016 began to require those wishing to apply for asylum to do so during extremely restricted hours via a basic Skype line. The average wait to simply begin the registration process to apply for asylum is 81 days, during which time applicants are forced to live illegally in Greece. This study’s methodology in analyzing the 'pre-application' process consists of hours of interviews with asylum seekers, NGOs, and the Asylum Service office on the ground in Athens, as well as an analysis of the Greek Asylum Service historical asylum registration statistics. This study presents three main findings: the delays associated with the Skype system in Greece are the result of system design, as proven by a statistical analysis of Greek asylum registrations, NGOs have been co-opted by the state to perform state functions during the process, and the government’s use of technology is both purposefully lazy and discriminatory. In conclusion, the study argues that such asylum practices are part of a pattern of first-world migration receiving countries policies’ which discourage asylum seekers from applying and fall short of the standards in international law.

Keywords: asylum, European Union, governance, Greece, irregular, migration, policy, refugee, Skype

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Authors: Erni Agustin, Zendy Prameswari

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The Law Number 1 Year 1974 on Marriage was issued by Indonesian Government to replace the old marriage law stipulated in Burgerlijk Wetboek inherited from the Dutch colonial. The Law defines marriage as both physical and mental bond between a man and a woman as husband and wife with the purpose to form a harmonious family based on deity. Marriage shall be conducted when determined requirements are met based on the Law. Article 7 of the Law Number 1 Year 1974 stipulates the minimum age requirement to enter into marriage, which is 19 years for men and 16 years for women. This stipulation is made to make the marriage achieve the true goal to form a happy, eternal and prosperous family. It is expected at that age, each party has a mature soul and physic. However, it is possible for those who have not reached the age to enter into marriage if there is a dispensation granted by the courts or other official designated by the parents of each party in the marriage. As many other countries in the world, Indonesia has serious problems linked with the child or underage marriage. Indonesia is one of the countries with the highest absolute numbers of child marriage. In 2012, a judicial review was filed to the Constitutional Court against the provisions of the minimum age limit in the Law Number 1 Year 1974 on Marriage. The appeal was filed in order to raise the limit of minimum age for women from 16 years to be 18 years. However, the Constitutional Court considered that the provisions on the minimum age in the Law Number 1 Year 1974 on Marriage is constitutional. At the international level, Indonesia has participated in the formulation of variety of international human rights instrument which have an impact on children, and is a party to a number of them. Indonesia ratified the CRC through Presidential Decree of the Republic of Indonesia Number 36 Year 1990 on 5 September 1990. This paper attempts to analyze three main issues. Firstly, it will scrutinize the ratio legis of the stipulation on minimum age requirement to enter into marriage in the Law Number 1 Year 1974 on Marriage. Secondly, it will discuss the conformity of Indonesian marriage law to the principles and provisions on the CRC. Last, this paper will elaborate the legal measures shall be taken to strengthen the legal protection for children against child marriage. This paper is a doctrinal research using statute, conceptual and historical approaches. This study argues that The Law-making of Indonesian marriage law influenced by religious values that live in Indonesia. With regard to the conformity of Indonesian marriage law with the CRC, Indonesia is facing the issue of the compatibility of its respective national law with the CRC. Therefore, the legal measures that have to be taken are to review and amend the Indonesian Marriage Law to provide better protection for the children against underage marriage.

Keywords: child marriage, children’s rights, indonesian marriage law, underage marriage

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Authors: Eglė Bilevičiūtė, Vidmantas Egidijus Kurapka, Snieguolė Matulienė, Sigutė Stankevičiūtė

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The Council of European Union (EU Council) has stressed on several occasions the need for a concerted, comprehensive and effective solution to delinquency problems in EU communities. In the context of establishing a European Forensic Science Area and the development of forensic science infrastructure in Europe, EU Council believes that forensic science can significantly contribute to the efficiency of law enforcement, crime prevention and combating crimes. Lithuanian scientists have consolidated to implement a project named “Conception of the vision for European Forensic Science 2020 implementation in Lithuania” (the project is funded for the period of 1 March 2014 - 31 December 2016) with the objective to create a conception of implementation of the vision for European Forensic Science 2020 in Lithuania by 1) evaluating the current status of Lithuania’s forensic system and opportunities for its improvement; 2) analysing achievements and knowledge in investigation of crimes listed in conclusions of EU Council on the vision for European Forensic Science 2020 including creation of a European Forensic Science Area and the development of forensic science infrastructure in Europe: trafficking in human beings, organised crime and terrorism; 3) analysing conceptions of criminalistics, which differ in different EU member states due to the variety of forensic schools, and finding means for their harmonization. Apart from the conception of implementation of the vision for European Forensic Science 2020 in Lithuania, the project is expected to suggest provisions that will be relevant to other EU countries as well. Consequently, the presented conception of implementation of vision for European Forensic Science 2020 in Lithuania could initiate a project for a common vision of European Forensic Science and contribute to the development of the EU as an area of freedom, security and justice. The article presents main ideas of the project of the conception of the vision for European Forensic Science 2020 of EU Council and analyses its legal background, as well as prospects of and challenges for its implementation in Lithuania and the EU.

Keywords: EUROVIFOR, standardization, vision for European Forensic Science 2020, Lithuania

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Authors: Ramona Georgeta Biholar

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Gender-based violence against women plagues societies around the world. The work to eliminate it is an ongoing battle. At the international level, Article 5 (a) CEDAW establishes an agenda for social and cultural transformation: it imposes on States parties to CEDAW an obligation to modify sex roles and stereotypical social and cultural patterns of conduct. Also, it provides for the protection of women from violence stemming from such gender norms. Yet, the lived realities of women are frequently disconnected from this agenda. Nonetheless, it is the reality of the local that is crucial for the articulation, implementation and realization of women’s rights in general, and for the elimination of gender-based violence against women in particular. In this paper we discuss the transformation of sex roles and gender stereotyping with a view to realize women’s right to be free from gender-based violence. This paper is anchored in qualitative data collection undertaken in Jamaica and socio-legal research. Based on this research, 1) We explain the process of vernacularisation as a strategy that enables women’s human rights to hit the ground and benefit rights holders, and 2) We present a synergistic model for the implementation of Article 5 (a) CEDAW so that women’s right to be free from gender-based violence can be realized in a concrete national jurisdiction. This model is grounded in context-based demands and recommendations for social and cultural transformation as a remedy for the incidence of gender-based violence against women. Moreover, the synergistic model offers directions that have a general application for the implementation of CEDAW and Article 5 (a) CEDAW in particular, with a view to realize women’s right to be free from gender-based violence. The model is thus not only a conceptual tool of analysis, but also a prescriptive tool for action. It contributes to the work of both academics and practitioners, such as Governmental officials, and national and local civil society representatives. Overall, this paper contributes to understanding the process necessary to bridge that gap between women’s human rights norms and women’s life realities of discrimination and violence.

Keywords: CEDAW, gender-based violence against women, international human rights law, women’s rights implementation, the Caribbean

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Authors: Seane Mabitsela

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The Territory of Namibia was entrusted to South Africa as a Mandate under the League of Nations Covenant. After the dissolution of the League of Nations and the commencement of United Nations operations, South Africa's conception of its legal obligations under the mandate varied from those of other members of the United Nations. Because of that, the General Assembly requested the International Court of Justice for an Advisory Opinion on the international obligations of South Africa arising therefrom. The International Court of Justice declared that South West Africa was still a mandatory territory under the Covenant of the League of Nations. It also held that South Africa continued to transmit petitions from inhabitants of the territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions were to be submitted. Subject to this judgement, the question of South West Africa remained a dispute relating to the mandate brought before the International Court of Justice against South Africa. The International Court of Justice and South Africa dispute reflected the nature of the Namibian inhabitants’ appeal for recognition at the United Nations.

Keywords: International Court of Justice, Namibia, petitions, United Nations

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Authors: Kolawole Oyekan

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Torture, cruel, inhuman and degrading treatment is one of the issues dealt with by the United Nations in its development of human rights standard. Torture and other ill -treatments is banned at all times in all places including in times of war. There is no justification for torture, cruel, inhuman and degrading treatment under any law in Nigeria. All statutes; local, regional and international on human rights prohibits all forms of degrading treatment. This paper examines the definition of torture, inhuman and degrading treatment and the prevalence of confessional statements obtain through torture by security agencies during the interrogation of crime suspects and are mostly relied upon during trial even in cases involving capital punishment. The paper further reviews the Violence against Persons Prohibition Act 2015 which prohibits torture and other forms of ill-treatment. Presently, the Act is applicable only to the federal Federal Capital Territory, Abuja. Consequently, the paper concludes that the Act should be adopted as a matter of urgency by the 36 states of the Federation of Nigeria and in addition, cogent steps must be taken to ensure that the provisions of the Act are strictly complied with in order to eliminate torture, cruel and inhuman degrading treatment in Nigeria.

Keywords: confessional statement, human rights, torture, United Nations

Procedia PDF Downloads 279