Search results for: human rights court

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: 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: Adriano Mortada

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Human history is rife with conflict, and the question of refugee status determination and their rehabilitation has been up for debate since. Refugee Status Determination is the administrative or legal process by which UNHCR or governments determine whether a person seeking international protection or asylum can be identified as a refugee under international, regional, or national law. Refugee Status Determination is considered to be a vital process in aiding refugees’ realization of their rights under international law. One of the major reasons why the refugee status determination is considered an “issue”, and is one that is much debated upon annually, is the fact that the national bureaucratic systems are rigid and unbending. This is particularly concerning in the 21st century despite human advancement in policy and diplomacy, working in tandem with the United Nations and their charters and resolutions on human rights and dignity. The paper seeks to criticize the European member states' response to the refugee crisis and their inflexible and prejudiced bureaucratic systems when it comes to refugee status determination. The paper looks at multiple case studies as primary evidence and the alternate case studies where the system helped refugees, like those in Jordan, Pakistan, Turkey, and Lebanon. The main concern of the paper is to highlight the bias in the selected European systems, which do not stem from the Human Rights Charter but rather on the basis of geographical backgrounds, cultural and religious affiliations of those seeking refugee status or asylum in their respective countries. The paper hopes to not only create awareness about this issue but also provide a research background to advocacy programs to bring a change in the systems.

Keywords: refugee status determination, human rights, bureaucracy, United Nations, European Union

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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: Mirjana Dokmanovic

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The paper will introduce main findings of the research of the responses of the Central European and South Eastern European (CEE/SEE) countries to the global economic and financial crisis in 2008 from human rights and gender perspectives. The research methodology included desk research and qualitative analysis of the available data, studies, statistics, and reports produced by the governments, the UN agencies, international financial institutions (IFIs) and international network of civil society organizations. The main conclusion of the study is that the governments in the region missed to assess the impacts of their anti-crisis policies both ex ante and ex post from the standpoint of human rights and gender equality. Majority of the countries have focused their efforts solely on prompting up the banking and financial sectors, and construction business sectors. The tremendous debt which the states have accumulated for the rescue of banks and industries lead to further cuts in social expenses and reduction of public services. Decreasing state support to health care and social protection and declining family incomes made social services unaffordable for many families. Thus, the economic and financial crisis stirred up the care crisis that was absorbed by women’s intensifying unpaid work within a family and household to manage household survival strategy. On the other hand, increased burden of the care work weakened the position of women in the labour market and their opportunities to find a job. The study indicates that the artificial separation of the real economy and the sphere of social reproduction still persist. This has created additional burden of unpaid work of women within a family. The aim of this paper is to introduce the lessons learnt for future: (a) human rights may not be derogated in the times of crisis; (b) the obligation of states to mitigate negative impacts of economic policies to population, particularly to vulnerable groups, must be prioritized; (c) IFIs and business sector must be liable as duty bearers with respect to human rights commitments.

Keywords: CEE/SEE region, global financial and economic crisis, international financial institutions, human rights commitments, principle of non-derogability of human rights

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Authors: Louise Reyntjens

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Where criminal law used to be the traditional response to cope with the terrorist threat, European governments are increasingly relying on administrative paths. The reliance on immigration law fits into this trend. Terrorism is seen as a civilization menace emanating from abroad. In this context, the expulsion of dangerous aliens, immigration law’s core task, is put forward as a key security tool. Governments all over Europe are focusing on removing dangerous individuals from their territory rather than bringing them to justice. This research reflects on the consequences for the expelled individuals’ fundamental rights. For this, the author selected four European countries for a comparative study: Belgium, France, the United Kingdom and Sweden. All these countries face similar social and security issues, igniting the recourse to immigration law as a counterterrorism tool. Yet, they adopt a very different approach on this: the United Kingdom positions itself on the repressive side of the spectrum. Sweden on the other hand, also 'securitized' its immigration policy after the recent terrorist hit in Stockholm, but remains on the tolerant side of the spectrum. Belgium and France are situated in between. This paper addresses the situation in Belgium. In 2017, the Belgian parliament introduced several legislative changes by which it considerably expanded and facilitated the possibility to expel unwanted aliens. First, the expulsion measure was subjected to new and questionably definitions: a serious attack on the nation’s safety used to be required to expel certain categories of aliens. Presently, mere suspicions suffice to fulfil the new definition of a 'serious threat to national security'. A definition which fails to respond to the principle of legality; the law, nor the prepatory works clarify what is meant by 'a threat to national security'. This creates the risk of submitting this concept’s interpretation almost entirely to the discretion of the immigration authorities. Secondly, in name of intervening more quickly and efficiently, the automatic suspensive appeal for expulsions was abolished. The European Court of Human Rights nonetheless requires such an automatic suspensive appeal under Article 13 and 3 of the Convention. Whether this procedural reform will stand to endure, is thus questionable. This contribution also raises questions regarding expulsion’s efficacy as a key security tool. In a globalized and mobilized world, particularly in a European Union with no internal boundaries, questions can be raised about the usefulness of this measure. Even more so, by simply expelling a dangerous individual, States avoid their responsibility and shift the risk to another State. Criminal law might in these instances be more capable of providing a conclusive and long term response. This contribution explores the human rights consequences of expulsion as a security tool in Belgium. It also offers a critical view on its efficacy for protecting national security.

Keywords: Belgium, counter-terrorism and human rights, expulsion, immigration law

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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: 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: Celine Jaspers

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The Belgian legal system is slowly evolving to mandatory mediation to promote ADR. One of the reasons for this evolution is the lack of use of alternative methods in relation to their possible benefits. Especially in divorce cases, ADR can play a beneficial role in resolving disputes, since the emotional component is very much present. When children are involved, a solution provided by the parent may be more adapted to the child’s best interest than a court order. In the first part, the lack of use of voluntary ADR and the evolution toward mandatory ADR in Belgium will be indicated by sources of legislation, jurisprudence and social-scientific sources, with special attention to divorce cases. One of the reasons is lack of knowledge on ADR, despite the continuing efforts of the Belgian legislator to promote ADR. One of the last acts of ADR-promotion, was the implementation of an Act in 2018 which gives the judge the possibility to refer parties to mediation if at least one party wants to during the judicial procedure. This referral is subject to some conditions. The parties will be sent to a private mediator, recognized by the Federal Mediation Commission, to try to resolve their conflict. This means that at least one party can be mandated to try mediation (indicated as “semi-mandatory mediation”). The main goal is to establish the factors and elements that Belgium has to take into account in their further development of mandatory ADR, with consideration of the human rights perspective and the EU perspective. Furthermore it is also essential to detect some dangerous pitfalls other systems have encountered with their process design. Therefore, the second part, the comparative component, will discuss the existing framework in California, USA to establish the necessary elements, possible pitfalls and considerations the Belgian legislator can take into account when further developing the framework of mandatory ADR. The contrasting and functional method will be used to create key elements and possible pitfalls, to help Belgium improve its existing framework. The existing mandatory system in California has been in place since 1981 and is still up and running, and can thus provide valuable lessons and considerations for the Belgian system. Thirdly, the key elements from a human rights perspective and from a European Union perspective (e.g. the right to access to a judge, the right to privacy) will be discussed too, since the basic human rights and European legislation and jurisprudence play a significant part in Belgian legislation as well. The main sources for this part will be the international and European treaties, legislation, jurisprudence and soft law. In the last and concluding part, the paper will list the most important elements of a mandatory ADR-system design with special attention to the dangers of these elements (e.g. to include or exclude domestic violence cases in the mandatory ADR-framework and the consequences thereof), and with special attention for the necessary the international and European rights, prohibitions and guidelines.

Keywords: Belgium, divorce, framework, mandatory ADR

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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: 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: 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

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Authors: J. D. Temperman

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Introduction: In particular, in relation to religion, the meaning and scope of freedom of expression have been tested in recent times. This paper investigates the legal justifications for restrictions that have been suggested in this area and asks whether they are sustainable from an international human rights perspective. The universal human rights instruments, particularly the UN International Covenant on Civil and Political Rights (ICCPR), are increasingly geared towards eradicating ‘incitement’ to contingent harms like violence or discrimination, whilst forms of extreme speech that fall short of such incitement are to be protected rather than countered by states. Human Rights Committee’s draft-General Comment on freedom of expression, adopted in 2011, provides another strong indication that this is the envisaged way forward: repealing anti-blasphemy and anti-religious defamation laws, whilst simultaneously increasing efforts to combat ‘incitement’. Within regional human rights frameworks, notably the European Convention system, judgments have in fact supported legal restrictions on both hate speech, holocaust denial, and blasphemy or religious defamation. Major contributions to scholarship: This paper proposes an actus reus for the offense of ‘advocacy of religious hatred that constitutes incitement to discrimination or violence’, as enshrined in Article 20(2) of the UN ICCPR. In underscoring the high threshold of ‘incitement’, the author distinguishes this offense from such notions as ‘blasphemy’ or ‘defamation of religions’. In addition to treating the said provision as a sui generis prohibition, the question is addresses whether a ‘right to be protected against incitement’ may be distilled from the ICCPR. Furthermore, the author will discuss the question of how to judge incitement; notably, is mens rea required to convict someone of incitement, and if so, what degree of mens rea? This analysis also includes the question how to balance content and context factors when addressing alleged instances of incitement, notably what factors make provide for a likelihood that imminent acts of violence or discrimination will ensue from an inciteful speech act? Methodology: This paper takes a double comparative approach: (i) it endeavours to compare and contrast monitoring bodies’ approach to incitement (notably, the UN Human Rights Committee, but also the UN Committee on the Elimination of Racial Discrimination which monitors states’ compliance with Article 4 of ICERD on incitement); and (ii) it endeavours to chart and compare and analyse from an international human rights perspective recent forms of state practice in the field of dealing with incitement (i.e. a comparative legal analysis and vertical human rights analysis of newly emerging incitement legislation in the light of the said international standards). Conclusion: This paper conceptualizes a legal notion – ‘incitement’ – encapsulated in international human rights law that may have a profound bearing on contemporary challenges of radicalization and religious strife.

Keywords: incitement, international human rights law, religious hatred, violence

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Authors: Mary Ostaszewski

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For many years China was riddled by poverty among many other issues and was far from a world power. However, today China has one of the largest GDPs of any country in the world and is a global powerhouse. Since China has accomplished so much, many would presume that this means China is moving away from being a “developing country” alongside countries such as India, Brazil, Israel, etc. into the category “developed country” with countries such as the U.S. Yet, this is not the case as, despite their economic strides, China still has ways to come, especially when it comes to human rights. China faces extreme criticism regarding how the Chinese Communist Party (CCP) handles human rights. China has an Orwellian-based society where technology is highly monitored, critics are quickly silenced, and freedoms are heavily restricted. One of their most recent human rights violations is attempting to repress Uyghur populations by placing them into “re-education camps,” where an already vulnerable population is being deprived of their freedoms through severe oppression. These violations create concerns as other developing countries with authoritarian governments follow the example of China. This is mainly because China has seen great success economically while simultaneously being able to maintain its authoritarian regime, thus, inspiring other countries to continue their human rights violations in hopes of gaining success similar to China’s. This idolization of China by other authoritarian regimes creates a concern especially regarding their “re-education” camps. This paper will argue that Chinese “re-education” camps are not only dangerous because they severely oppress and harm the Uyghur population. Yet they are also dangerous because other countries already impressed by China’s success may adopt similar camps in their countries to ensure their oppressive governments retain their tight grasp on power.

Keywords: China, re-education camps, developing countries, Africa, West

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Authors: Liav Orgad

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This article challenges one of the most fundamental propositions in the democratic theory that the majority culture is protected merely by the forces of democracy and thus needs no special legal protection. By describing changes in the patterns of migration to Europe, in the face of the European society, and in the world as a whole, the Article demonstrates that the majority culture is no longer automatically protected by the forces of democracy. It claims that the changing reality is not adequately addressed by political theory and human rights law and advances the promotion of a new concept—'cultural majority rights'.

Keywords: European migration, European demography, democratic theory, majority rights, integration

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Authors: Nour Mohammad

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The concept of International Criminal Court is not a new idea.It goes back to the late 19th century and was first mooted in 1872 by Gustave Moynier of the International Commitee of the Red Cross(ICRC). This paper attempts to focus on jurisdictional problem of the international criminal court (ICC) over national of states of non parties to the Rome statute. Mor than 120 countries are state parties to the Rome Statute representing all regions, Afria, the Asia-pacofoc Eastern Europe, Latin America and the Caribben as well as Western Europe and North America.The Statute is the core document of internationa criminal law todaycontaining 128 Articles and divided in 13 parts.The Rome Statute provides that the court may sit elsewhere the judge consider it desirable.The International Criminal Court is not in a position to adjudicate all international crimes but its jurisdiction is limited to the four categories of crime viz. genocide, crimes against humanity, war crimes and crime of aggression as stipulated in Article 5 of the ICC Statute. It also mention here that the Court will be able to exercise its jurisdiction over the crime of aggression only when this crime is defined. Due to the highly political nature of this crime, it is unlikely that a consensus in this regard would be arrived at in the near future.The main point of this article is to discuss the mandate of international criminal court to prosecute and punish persons responsible for the henious crimes of concern to the international community.The author highlighted the principles which support the delegation of criminal jurisdiction by state to international tribunals and discuss the precedents of such delegation.It also argued that the exercise of ICC jurisdiction over acts done pursuant to the officially policy of non-party state would not be contrary to the principles requiring consent for the exercise of jurisdiction by international tribunals. The article explore the limit to jurisdiction of ICC over non-party nationals.

Keywords: jurisdiction, international, criminal, court, non-parties

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Authors: Hasan Alrashid

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The 2005 Hague Convention seeks to ensure legal certainty and predictability between parties in international business transactions. It harmonies exclusive choice of court agreements at the international level between parties to commercial transactions and to govern the recognition and enforcement of judgments resulting from proceedings based on such agreements to promote international trade and investment. Although the choice of court agreements is significant in international business transactions, the United Arab Emirates refuse to recognise it by Article 24 of the Federal Law No. 11 of 1992 of the Civil Procedure Code. A review of judicial judgments in United Arab Emirates up to the present day has revealed that several cases appeared before the Court in different states of United Arab Emirates regarding the recognition of exclusive choice of court agreements. In all the cases, the courts regarded the exclusive choice of court agreements as a direct assault on state authority and sovereignty and refused categorically to recognize choice of court agreements by refusing to stay proceedings in favor of the foreign chosen court. This has created uncertainty and unpredictability in international business transaction in the United Arab Emirates. In June 2011, the first Gulf Judicial Seminar on Cross-Frontier Legal Cooperation in Civil and Commercial Matters was held in Doha, Qatar. The Permanent Bureau of the Hague Conference attended the conference and invited the states of the Gulf Cooperation Council (GCC) namely, The United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait to adopt some of the Hague Conventions, one of which was the Hague Convention on Choice of Court Agreements. One of the recommendations of the conference was that the GCC states should research ‘the benefits of predictability and legal certainty provided by the 2005 Convention on Choice of Court Agreements and its resulting advantages for cross-border trade and investment’ for possible adoption of the Hague Convention. Up to today, no further step has been taken by the any of the GCC states to adapt the Hague Convention nor did they conduct research on the benefits of predictability and legal certainty in international business transactions. This paper will argue that the approach regarding the recognition of choice of court agreements in United Arab Emirates states can be improved in order to help the parties in international business transactions avoid parallel litigation and ensure legal certainty and predictability. The focus will be the uncertainty and gaps regarding the choice of court agreements in the United Arab Emirates states. The Hague Convention on choice of court agreements and the importance of harmonisation of the rules of choice of court agreements at international level will also be discussed. Finally, The feasibility and desirability of recognizing choice of court agreements in United Arab Emirates legal system by becoming a party to the Hague Convention will be evaluated.

Keywords: choice of court agreements, party autonomy, public authority, sovereignty

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Authors: Ani Eda Njwe

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Cameroon is a bilingual and bijural country in West and Central Africa. The current president has been in power since 1982, which makes him the longest-serving president in the world. The length of his presidency is one of the major causes of the ongoing political instability in the country. The preamble of the Cameroonian constitution commits Cameroon to respect international law and human rights. It provides that these laws should be translated into national laws, and respected by all spheres of government and public service. Cameroon is a signatory of several international human rights laws and conventions. In theory, the citizens of Cameroon have adequate legal protection against the violation of their human rights for political reasons. The ongoing political crisis in Cameroon erupted after the Anglophone lawyers and teachers launched a protest against the hiring of Francophone judges in Anglophone courts; and the hiring of Francophone teachers in Anglophone schools. In retaliation, the government launched a military crackdown on protesters and civilians, conducted arbitrary arrests on Anglophones, raped and maimed civilians, and declared a state of emergency in the Anglophone provinces. This infuriated the Anglophone public, causing them to create a secessionist movement, requesting the Independence of Anglophone Cameroon and demanding a separate country called Ambazonia. The Ambazonian armed rebel forces have ever since launched guerrilla attacks on government troops. This fighting has deteriorated into a war between the Ambazonians and the Cameroon government. The arbitrary arrests and unlawful imprisonments have continued, causing the closure of Anglophone schools since November 2016. In October 2018, Cameroon held presidential elections. Before the electoral commission announced the results, the opposition leader, a Francophone, declared himself winner, following a leak of the polling information. This led to his imprisonment. This research has the objective of finding out whether the government’s reactions to protesters and opposition is lawful, under national and international laws. This research will also verify if the prison conditions of political prisoners meet human rights standards. Furthermore, this research seeks detailed information obtained from current political prisoners and detainees on their experiences. This research also aims to highlight the effort being made internationally, towards bringing awareness and finding a resolution to the war in Cameroon. Finally, this research seeks to elucidate on the efforts which human rights organisations have made, towards overseeing the respect of human rights in Cameroon. This research adopts qualitative methods, whereby data were collected using semi-structured interviews of political detainees, and questionnaires. Also, data was collected from secondary sources such as; scholarly articles, newspaper articles, web sources, and human rights reports. From the data collected, the findings were analysed using the content analysis research technique. From the deductions, recommendations have been made, which human rights organisations, activists, and international bodies can implement, to cause the Cameroonian government to stop unlawful arrests and reinstate the respect of human rights and the rule of law in Cameroon.

Keywords: arbitrary arrests, Cameroon, human rights, political

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Authors: Adi Goldiner

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Historically, the social model of disability has played a pivotal role in bringing rights discourse into the disability debate. Against this backdrop, the paper explores the conceptual alignment between the social model’s account of disability and the nature of rights. Specifically, the paper examines the possibility that the social model conceptualizes disability in a way that aligns with the nature of rights and thus motivates the invocation of disability rights. Methodologically, the paper juxtaposes the literature on the social model of disability, primarily the work of the Union of the Physically Impaired Against Segregation in the UK and related scholarship, with theories of moral rights. By focusing on the interplay between the social model of disability and rights, the paper provides a conceptual explanation for the rise of disability rights. In addition, the paper sheds light on the nature of rights, their function and limitations, in the context of disability rights. The paper concludes that the social model’s conceptualization of disability is hospitable to rights, because it opens up the possibility that there are duties that correlate with disability rights. Under the social model, disability is a condition that can be eliminated by the removal of social, structural, and attitudinal barriers. Accordingly, the social model dispels the idea that the actions of others towards disabled people will have a marginal impact on their interests in not being disabled. Equally important, the social model refutes the idea that in order to significantly serve people's interest in not being disabled, it is necessary to cure bodily impairments, which is not always possible. As rights correlate with duties that are possible to comply with, as well as those that significantly serve the interests of the right holders, the social model’s conceptualization of disability invites the reframing of problems related to disability in terms of infringements of disability rights. A possible objection to the paper’s argument is raised, according to which the social model is at odds with the invocation of disability rights because disability rights are ineffective in realizing the social model's goal of improving the lives of disabled by eliminating disability. The paper responds to this objection by drawing a distinction between ‘moral rights,’ which, conceptually, are not subject to criticism of ineffectiveness, and ‘legal rights’ which are.

Keywords: disability rights, duties, moral rights, social model

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Authors: Mohammad Parvaresh, Mahdi Babaee, Bahareh Arghand, Davood Nourmohammadi

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Environmental degradation is caused by social inequalities and the inappropriate use of nature and a factor in the violation of human rights. Indeed, the right to a safe, healthy and ecologically-balanced environment is an independent human right. Therefore, the relationship between human rights and environmental protection is crucial for the study of social justice and sustainable development, and environmental problems are a result of the failure to realize social and economic justice. In this regard, 'article 50 of the constitution of the Islamic Republic of Iran as a general principle have many of the concepts of sustainable development, including: the growth and improvement of human life, the rights of present and future generations, and the integrity of the inner and outer generation, the prohibition of any environmental degradation'. Also, Charter on Citizen’s Rights, which was conveyed by the President of the Islamic Republic of Iran, Mr. Rouhani refers to the right to a healthy environment and sustainable development. In this regard in 2013, Tehran Province Water and Wastewater Co. defined a plan called 'Tehran’s Health Line' was includes Western and Eastern part by about 26 kilometers of water transferring pipelines varied 1000 to 2000 mm diameters. This project aims to: (1) Transfer water from the northwest water treatment plant to the southwest areas, which suffer from qualitative and quantitative water, in order to mix with the improper wells’ water; (2) Reducing the water consumption provided by harvesting from wells which results in improving the underground water resources, causing the large settlements and stopping the immigrating slums into the center or north side of the city. All of the financial resources accounted for 53,000,000 US$ which is mobilized by Tehran Province Water and Wastewater Co. to expedite the work. The present study examines the Tehran Health Line plan and the purpose of implementation of this plan to achieve environmental protection, environmental justice and citizenship rights for all people who live in Tehran.

Keywords: environmental justice, international environmental law, erga omnes, charter on citizen's rights, Tehran health line

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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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