Search results for: legal rights

Authors: Yujie Zhang

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There are debates around the legitimacy of capital punishment, i.e., whether death could serve as a proper execution in our legal system or not. Different arguments have been raised. However, none of them seem able to provide a determined answer to the issue; this results in a lack of instruction in the legal practice. This article, therefore, devotes itself to the effort to find such an answer. It takes the perspective of rights, through interpreting the concept of right to life, which capital punishment appears to be in confliction with in the two traditional approaches, to reveal a possibly best account of the right and its conclusion on capital punishment. However, this effort is not a normative one which focuses on what ought to be. It means the article does not try to work out which argument we should choose and solve the hot debate on whether capital punishment should be allowed or not. It, again, does not propose which perspective we should take to approach this issue or generally which account of right must be better; rather, it is more a thought experiment. It attempts to raise a new perspective to approach the issue of the legitimacy of capital punishment. Both its perspective and conclusion therefore are tentative: what if we view this issue in a way we have never tried before, for example the different accounts of right to life? In this sense, the perspective could be defied, while the conclusion could be rejected. Other perspectives and conclusions are also possible. Notwithstanding, this tentative perspective and account of the right still could not be denied from serving as a potential approach, since it does have the ability to provide us with a determined attitude toward capital punishment that is hard to achieve through existing arguments.

Keywords: capital punishment, right to life, theories of rights, the choice theory

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Authors: Bubaker F. Shareia

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The aim of this paper is to determine a general frame of the auditor's legal responsibilities in Libya which were implied in professional codes and rules, these codes and rules were concerned with the auditor's rights and duties in conducting his professional duties. This will provide a background for the Libyan accounting profession, and the challenges in tailoring Auditors to meet third party's needs. Being informed of the kinds of legal responsibilities which the external auditors could face during conducting their duties. The study is based on a literature review and archival research, reinforced by a qualitative case study comprised of interviews, questionnaire and a study of internal documents. To reach such an understanding, the researcher designed two questionnaires for collecting the data. One questionnaire was distributed among the certified public accountant firms in Libya and the second was distributed among a group of randomly selected lawyers and judges in the same country. Most auditors agreed upon the determination of their responsibilities toward the state and they emphasized that their responsibilities toward their clients were limited to the accepted standards of auditing. Moreover, all auditors who were surveyed emphasized that there has never been any juridical claims against them, and as a consequence they have never paid any legal fines. This study focuses on one country, which does limit its generalisability. However, it also suggests fruitful research areas in considering the impact and challenge of the historic factors in the accounting profession in emerging economies.

Keywords: accounting, external auditor, legal responsibilities, libyan accounting profession

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Authors: Miftahuddin Khilji

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The concept of human right is not alien to Islam. The Shari‘ah requires all its followers the sense of responsibility to perform their duties first and then claim their rights. This eventually guarantees the protection of human rights and ensures a peaceful society. The ultimate goal of Shari‘ah is to preserve five basic necessities which are also known as Maqasid ul Shari‘ah or Objectives of Islamic Law. This goal ensures for the members of society their rights without harming public welfare. Despite of the fact that human rights have been fully guaranteed by Islam and their compliance is required by Allah Almighty; not by any legislative body or other sovereign such as kings etc. However, many western writers, organizations and so called liberal thinkers try to create concerns, doubts and misconceptions in minds of the society members. A number of issues are pointed out and people are misguided about the concept of human rights in Islam. This paper aims to discuss main the concept of human rights in the light of perfect and balanced system of laws and principles of Shari‘ah and address those misconceptions and doubts by analyzing them and answering to questions raised about the subject. It would be an effort to prove that human rights are much more significant to Shari‘ah more than any other national or international legislative body.

Keywords: human rights, Islamic law, law, Shariah

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Authors: Marcus Smith

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DNA profiling has made a valuable contribution to criminal investigations over the past thirty years. Direct matching DNA profiles from a crime scene and suspect, or between a suspect and a database remain of great importance to crimes such as murder, assault, and property theft. As scientific and technological advancement continues, a wide range of new DNA profiling applications has been developed. The application of new techniques involves an interesting balancing act between admitting probative evidence in a criminal trial, evaluating its degree of relevance and validity, and limiting its prejudicial impact. The impact of new DNA profiling applications that have significant implications for law enforcement and the legal system can be evaluated through a review of relevant case law, legislation and the latest empirical evidence from jurisdictions around the world including the United States, United Kingdom, and Australia. There are benefits in further examining the implications of these new developments, including how the criminal law can best be adapted to ensure that new technology is used to enhance criminal investigation and prosecution while ensuring it is applied in a measured way that respects individual rights and maintains principles of fairness enshrined in the legal system.

Keywords: criminal procedure, forensic evidence, DNA profiling, familial searching, phenotyping

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Authors: Nebiat Lemenih Lenger

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Today, the digital economy is evolving faster than ever in Ethiopia. Platforms that provide a ride-hailing service are growing fast in the country. The market welcomed them as they disrupt it with quality services and lower prices. This revolution is, however, not without challenges. These include cybersecurity breaches, facilitating illegal economic activities, and challenging concepts of privacy. To mitigate the risks and utilize the benefits, appropriate regulation should be introduced in the economy. By identifying legal and institutional gaps in Ethiopia`s digital economy, this research work assists the government`s effort to create a better digital economy. Moreover, this study, being a pioneer study in the area, will be an input for further studies in academia. The research employs a qualitative legal research method and analyzes various legal and policy instruments in Ethiopia in comparison with best international experiences. As this research applies a qualitative research method, a grounded theory method of data analysis is used. The research concluded that Ethiopia is far from designing appropriate legal and regulatory infrastructures. Due to the government monopoly of the sector, there is poor digital infrastructure in the country. The existing labor laws have no specific provisions on the rights and obligations of gig workers.

Keywords: Ethiopia, gig economy, digital, ride-hailing, regulation

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Authors: Vijayalaxmi Khopade

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The Prima facie caste system is intrinsic to Indian society. It is an ancient system of intense social stratification based upon birth and enjoying religious sanction. The uppermost strata and privileges are ascribed and enjoyed by brahmins (priestly class), while the lowest strata are occupied by Dalits who are not ascribed with any privileges. The caste system is inherently hierarchical, patriarchal, and systematic and thrives solely on exploitation justified through means of the Brahminical system of hegemony based singularly on birth. The caste system has extended its tentacles to other religions like Christianity, Buddhism, Jainism, and Islam in South Asia. Term Dalit is colloquially used to categorize persons belonging to lower strata in the caste hierarchy. However, this category is heterogenous and highly stratified, following practices like untouchability and exclusion amongst themselves. The modern Indian legal system acknowledges the existence of Caste and its perils. Therefore, by virtue of the Indian Constitution, provisions for affirmative action for the protection and development of Dalits are made. Courts in India have liberally interpreted laws to benefit Dalits. However, the modern system of governance is not immune from Caste based biases. These biases are reflected in the implementation of governance, including the dispensation of justice. The economic reforms of the 1990s gave a huge boost to the Indian diaspora. Persons of Indian origin are now seen making great strides in almost every sector and enjoying positions of power globally. As one peels off the layer of ethnic Indian origin, a deep seated layer of Caste and Caste based patriarchy is clearly visible. Indian diaspora enjoying positions of power essentially belongs to upper castes and carry Caste based biases with them. These castes have long enjoyed the benefits of education; therefore, they were the first ones to benefit from LPG (Liberalization, Privatization, Globalization) model adopted in the 1990s. Dalits, however, had little formal education until recently. The western legal system, to the best of our knowledge, does not recognize Caste and, therefore, cannot afford protection for Dalits, wherein discrimination and exploitation take place solely on the basis of Caste. Therefore, Dalits are left with no legal remedy outside domestic jurisdiction. Countries like the UK have made an attempt to include Caste in their Equality Bill 2010. This has met with tough resistance from Upper caste Hindus who shy away from recognizing their caste privileges and, therefore, the existence of Caste. In this paper, an attempt for comparative analysis is made between various legal protections accorded to Dalits in India vis-à-vis international human rights as protected by the United Nations under its declaration of Universal Human rights. An attempt has been made to mark a distinction between race and Caste and to establish a position of women in Caste based hierarchy. The paper also makes an argument for the inclusion of atrocities committed against Dalits as a violation of international human rights, their protection by the United Nations, and the trial of their violations by International Courts. The paper puts into perspective the need for an external agency like the United Nations and International courts to interfere in rights guaranteed by the Indian Constitution, even with the existence of a modern legal system in a sovereign democratic country.

Keywords: atrocity, caste, diaspora, legal framework

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Authors: Shagufta Jahangir, Raisa Jahangir, Nadeemullah

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In many societies sports is considered inappropriate for women. It traditionally associated with mascunity. The proposed study aims at undertaking a critical situation analysis of sports women in Pakistan from a gender perspective by examining various aspects of sports women by gender including wrong social values, unstable economical position, wrong religious perspective and the role of media towards women in sports, while sports can provide a channel for informing women about their social and legal rights as well as their health issues, productive health and others. A major concern of the study is to identify the basic causes which depriving Pakistani women from sports. The Human Rights Commission of Pakistan and the Joint Action Committee for People’s Rights organized a symbolic mini marathon on 21 May 2005 in Pakistan to challenge arbitrary curbs on women’s public participation in sport and to highlight rising violence against women. Historically, sport has engaged the perception of gender-hierarchy in order to reproduce the ideology of male superiority, a notion which is often translated into ‘usual superiority’ within the superior communal order. However, it is argued here that we are presently in a state of communal instability with esteem to women's participation in sport.

Keywords: mascunity, gender, productive health, inappropriate, rights

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Authors: Hilaire Tegnan

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Land administration has always been a delicate issue in the history of nations, and Indonesia, a country where a significant number of the population lives a pastoral life is not exempt from this reality. This paper discusses land tenure issues in West Sumatra, an Indonesian province which is home to the Minangkabau people with their long existing village management system known as Nagari, established to settle disputes based on adat (custom) principles as well as to protect the rights of the community members. These rights include communal land (referred to as tanahulayat hereafter). Long before the Dutch occupation of Indonesian archipelago, the nagari government was vested with powers to regulate communal land in West Sumatra. However, this authority was constantly overlooked by the then Dutch colonial administration as well as the post-independence governments (both central and regional). To reinforce the Nagari government as the guardian of the customary law (hukumadat) and to specify its jurisdiction, the Regional Government of West Sumatra enacted two laws between 2000 and 2008: Law No. 9/2000 repealed by Law No. 2/2007 and Law No. 6/2008 on communal land tenure. Although these two laws provide legal grounds to address land issues across the region, land conflicts still prevail among West Sumatran populations due to unsynchronized and contradictory regulations. The protests against the army (Korem) in Nagari Kapalo Hilalang, against the oil palm company in Nagari Kinali, and against a cement factory in Nagari Lubuk Kilangan are cited in this paper as case references.

Keywords: local government, Nagari government, Tanah Ulayat, legal pluralism, land administration

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Authors: C. Hipp

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The EU Regulation (EC) No 261/2004 under which air passengers can claim compensation in the event of denied boarding, cancellation or long delay of flights has to be regarded as a substantial progress for the consumer protection in the field of air transport since it went into force in February 2005. Nevertheless, different reviews of its effective functioning demonstrate that most passengers affected by service disruptions do not enforce their complaints and claims towards the airline. The main cause of this is not only the unclear legal situation due to the fact that the regulation itself suffers from many undetermined terms and loopholes it is also attributable to the strategy of the airlines which do not handle the complaints of the passengers or exclude their duty to compensate them. Economically contemplated, reasons like the long duration of a trial and the cost risk in relation to the amount of compensation make it comprehensible that passengers are deterred from enforcing their rights by filing a lawsuit. The paper focusses on the alternative dispute resolution namely the recently established conciliation bodies which deal with air passenger rights. In this paper, the Conciliation Body for Public Transport in Germany (Schlichtungsstelle für den öffentlichen Personenverkehr – SÖP) is examined as a successful example of independent consumer arbitration service. It was founded in 2009 and deals with complaints in the field of air passenger rights since November 2013. According to the current situation one has to admit that due to its structure and operation it meets on the one hand the needs of the airlines by giving them an efficient tool of their customer relation management and on the other hand that it contributes to the enforcement of air passenger rights effectively.

Keywords: air passenger rights, alternative dispute resolution, consumer protection, EU law regulation (EC) 261/2004

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Authors: Aisha Adam

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This study critically examines the transformative impact of automated decision-making (ADM) and artificial intelligence (AI) systems on South African labour law. As AI technologies increasingly infiltrate workplaces, existing liability frameworks face challenges in addressing the unique complexities presented by these innovations. This article explores the necessity of redefining liability to accommodate the nuanced landscape of ADM and AI within South African labour law. It emphasises the importance of ensuring responsible deployment and safeguarding the rights of workers amid evolving technological dynamics. This research investigates the central concern of fairness, bias, and discrimination in ADM and AI decision-making. Focusing on algorithmic bias and discriminatory outcomes, the paper advocates for the integration of mechanisms within the South African legal framework, particularly under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and the Employment Equity Act (EEA). The study scrutinises the shifting dynamics of the employment relationship, calling for clear guidelines on the responsibilities and liabilities of employers, employees, and technology providers. Furthermore, the article analyses legal and policy responses to ADM and AI within South African labour law, exploring potential amendments to legislation, guidelines, and codes of practice. It assesses the role of regulatory bodies, specifically the Commission for Conciliation, Mediation, and Arbitration (CCMA), in overseeing and enforcing responsible practices in the workplace. Lastly, the research evaluates the impact of ADM and AI on human and social rights in the South African context. Emphasising the protection of constitutional rights, including fair labour practices, privacy, and equality, the study proposes remedies and safeguards. It advocates for a multidisciplinary approach involving legal, technological, and ethical considerations to redefine liability in South African labour law effectively. The article contends that a shift from accountability to responsibility is crucial for promoting fairness, antidiscrimination, and the protection of human and social rights in the age of automated decision-making. It calls for collaborative efforts among stakeholders to shape responsible practices and redefine liability in this evolving technological landscape.

Keywords: automated decision-making, artificial intelligence, labour law, vicarious liability

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Authors: Abdulmajeed Abdullah Alqarni

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This paper is devoted a study of the current frameworks applicable to foreign investments at the levels of domestic and international law, with a particular focus on the legitimate balance to be achieved between the rights of the host state and the legal protections owed to foreign investors. At the wider level of analysis, the paper attempts to map and critically examine the relationship between foreign investment and economic development. In doing so, the paper offers a study in how current discourses and practices on investment law can reconcile the competing interests of developing and developed countries. The study draws on the growing economic imperative for developing nations to create a favorable investment climate capable of attracting private foreign investment. It notes that that over the past decades, an abundance of legal standards that establish substantive and procedural protections for legal forms of foreign investments in the host countries have evolved and crystalized. The study then goes on to offer a substantive analysis of legal reforms at the domestic level in countries such as Saudi Arabia before going on to provide an in- depth and substantive examination of the most important instruments developed at the levels of international law: bilateral investment agreements and double taxation agreements. As to its methods, the study draws on case studies and from data assessing the link between double taxation and economic development. Drawing from the extant literature and doctrinal research, and international and comparative jurisprudence, the paper excavates and critically examines contemporary definitions and norms of international investment law, many of which have been given concrete form and specificity in an ever-expanding number of bilateral and multilateral investment treaties. By reconsidering the wider challenges of conflicts of law and jurisdiction, and the competing aims of the modern investment law regime, the study reflects on how bilateral investment treaties might succeed in achieving the dual aims of rights protection and economic sovereignty. Through its examination of the double taxation phenomena, the study goes on to identify key practical challenges raised by the implementation of bilateral treaties whilst also assessing the sufficiency of the domestic and international legal solutions that are proposed in response. In its final analysis, the study aims to contribute to existing scholarship by assessing contemporary legal and economic barriers to the free flow of investment with due regard for the legitimate concerns and diversity of developing nations. It does by situating its analysis of the domestic enforcement of international investment instrument in its wider historical and normative context. By focusing on the economic and legal dimensions of foreign investment, the paper also aims to offer an interdisciplinary and holistic perspective on contemporary issues and developments in investment law while offering practical reform proposals that can be used to be achieve a more equitable balance between the rights and interests of states and private entities in an increasingly trans nationalized sphere of investment regulation and treaty arbitration.

Keywords: foreign investment, bilateral investment treaties, international tax law, double taxation treaties

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Authors: Lynamata Chhun

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Human Rights enforcement in the newly independent countries like Asian and African has always been penetrating issues. In spite, the existing of the Universal Declaration of Human Rights (UDHR), regions like Africa and Asia where values and cultural norms far differ from the concept had formed their own Human Rights instruments to tackle Human Rights issues in their regions instead of embracing the concept of UDHR completely. ASEAN Human Rights Declaration is one of the examples. This paper aims to examine the enforcement of Human Rights in South East Asia in the context of ASEAN regional integration. Precisely, the author attempts to analyse the effectiveness in undertaking Human Rights issues in the region by applying both the existing international and regional frameworks using the Myanmar Rohingya Crisis as the case study. The methodology of the paper is qualitative analysis where cross-impact analysis is employed to examine the case study. It is anticipated that the main findings of this paper will illuminate how applicable the international instruments are in comparison to the regional instruments in apprehending the human rights issues and will shed light on how ASEAN and dialogue partners should cooperate in the future regarding with the challenging issues of Human Rights in the region.

Keywords: ASEAN Human Rights Declaration, ASEAN integration, ASEAN way, international and regional instruments, Universal Declaration of Human Rights

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Authors: Ana M. Prieto del Pino

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As is well known, UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) was a landmark regarding the seizure of proceeds of crime. Depriving criminals of the profits from their activity became a priority at an international level in the fight against organised crime. Enabling confiscation of proceeds of illicit traffic in narcotic drugs and psychotropic substances, criminalising money laundering and confiscating the proceeds thereof are the three measures taken in order to achieve that purpose. The beginning of 21st century brought the declaration of war on corruption and on the illicit enjoyment of the profits thereof onto the international scene. According to the UN Convention against Transnational Organised Crime (2000), States Parties should adopt the necessary measures to enable the confiscation of proceeds of crime derived from offences (or property of equivalent value) and property, equipment and other instrumentalities used in offences covered by that Convention. The UN Convention against Corruption (2003) states asset recovery explicitly as a fundamental principle and sets forth measures aiming at the direct recovery of property through international cooperation in confiscation. Furthermore, European legislation has made many significant strides forward in less than twenty years concerning money laundering, confiscation, and asset recovery. Crime does not pay, let there be no doubt about it. Nevertheless, we must be very careful not to sing out of tune with individual rights and legal guarantees. On the one hand, innocent individuals and businesses must be protected, since they should not pay for the guilty ones’ faults. On the other hand, the rule of law must be preserved and not be tossed aside regarding those who have carried out criminal activities. An in-depth analysis of judicial decisions on money laundering and confiscation of proceeds of crime issued by European national courts and by the European Court of Human Rights in the last decade has been carried out from a human rights, legal guarantees and criminal law basic principles’ perspective. The undertaken study has revealed the violation of the right to property, of the proportionality principle legal and the infringement of basic principles of states’ domestic substantive and procedural criminal law systems. The most relevant ones have to do with the punishment of money laundering committed through negligence, non-conviction based confiscation and a too-far reaching interpretation of the notion of ‘proceeds of crime’. Almost everything in life has a bright and a dark side. Confiscation of criminal proceeds and asset recovery are not an exception to this rule.

Keywords: confiscation, human rights, money laundering, organized crime

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Authors: Jacob Bogart, Adaobi Egboka

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Nigeria signed and ratified the Convention on the Rights of Persons with Disabilities in 2010, which was heralded as a much-needed step towards protecting the rights of persons with disabilities (PWDs). However, even with such progress, incarcerated PWDs have been left behind. The current legal framework in Nigeria does not consider the particular challenges PWDs face in prison nor make provisions to address them, despite the need for such reforms. Indeed, given the closed and restricted nature of prisons, and the violence that results from overcrowding, lack of supervision, and poor facilities, prisoners with disabilities often face significant challenges while incarcerated. While every prisoner is affected by these issues, PWDs are disproportionately harmed by them due to the nature of their disability. A study of four prisons in Lagos State, Nigeria was carried out by interviewing prisoners with disabilities, prison officials, advocates, and academics. The study found that for prisoners with physical disabilities, inaccessible prison facilities and a lack of mobility, hearing, or seeing assistance can often cause them to be dependent on the mercy of the other inmates for assistance in performing such basic functions as using the restroom, going to church, or washing themselves. Prison officials do not assist these PWDs or provide them with aids, such as crutches or a cane. Relatedly, prisoners with psychosocial disabilities (mental health conditions) often are not removed to health care facilities, despite a law to that effect, and are left to languish in prisons without the mental health care treatment they need. This presentation argues that reforms addressing the rights of PWDs must consider and make provisions for prisoners with disabilities, such as ensuring that prison facilities are accessible, providing PWDs with mobility, seeing or hearing aids as needed, and conducting mental health screenings for persons awaiting trial immediately upon entering the prison. These reforms, among others, are necessary first steps toward realizing the rights of prisoners with disabilities in Nigeria.

Keywords: disability rights, human rights, Lagos, Nigeria, prisoners with disabilities

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Authors: Seraphina Bakta

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In many societies in Africa, it is a taboo to speak, let alone to practice or in any way to engage in matters relating to sexual and reproductive health. For instance, girls using contraceptives may be labeled prostitutes, and married women using family planning methods may be divorced on account that they are disobedient to their husbands as they do not want to bear children. As such, sexual and reproductive health as a right is still very far from reality to many men and women. To a large extent, the objections are mainly backed up in culture, which is deeply rooted in many African traditions. While such culture have both the good and bad side, the African Charter on Human and Peoples Rights has identified the bad ones as’ harmful cultural practices. This paper argues that, while cultural norms may hinder the realization of human rights, adopting a human rights based approach to address harmful cultural practices is likely, the best approach to realizing women’s rights to sexual and reproductive health rights in Africa.

Keywords: rights, culture, health, women

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Authors: Girma Y. Iyassu Menelik

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“The world is now like a global village!” so goes the saying that shows that due to development and technology the countries of the world are now closely linked. In the field of Human rights there is a close relationship in the way that rights are recognised and enforced. This paper will show that human rights have evolved from ancient times through important landmarks such as the Magna Carta, the French Declaration of Rights of Man and of the Citizen and the American Bill of Rights. The formation of the United Nations after the Second World War resulted in the need to codify and protect human rights. There are some rights which are so fundamental that they are found in international and continental instruments, national constitutions and domestic legislation. In the civil and political sphere they include the right to vote, to freedom of association, speech and assembly, right to life, privacy and fair trial. In the economic and social sphere you have the right to work, protection of the family, social security and rights to education, health and shelter. In some instance some rights can be suspended in times of public emergency but such derogations shall be circumscribed by the law and in most constitutions such limitations are subject to judicial review. However, some rights are so crucial that they cannot be derogated from under any circumstances and these include the right to life, recognition before the law, freedom from torture and slavery and of thought, conscience and religion. International jurisprudence has been developed to protect fundamental rights and avoid discrimination on the grounds of race, colour, sex, language or social origin. The elaborate protection system go to show that these rights have become part of the international order and they have universal application. We have now got to a stage where UDHR, ICCPR and ICESCR and have come to be regarded as part of an international bill of rights with horizontal and vertical enforcement mechanisms involving state parties, NGO’s , international bodies and other organs.

Keywords: rights, international, constitutional, state, judiciary

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Authors: Qazi Sarah Rasheed

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Feminism and religion have been regarded as opposing binaries. The reason being that religion is regarded as a tool to legitimize the patriarchal control over women, and therefore, it stands in contrast with the basic feminist principle of gender equity. Hence, the issue of incompatibility between religion and gender parity is often discussed by the feminist as well as secular/liberal discourses, but the feminist discourse has suffered a serious backlash in the recent times for it alienates those women who want to liberate but not at the expense of their religious identity. Though in the Western feminist thought, religion is regarded as a tool of patriarchy that promotes women’s suppression, but for many women, religion can be a source of liberation that advances their rights. The feminists in general, fail to realize that religion, as a social phenomenon may not necessarily promote a series of dogmatic doctrines which are inevitably retrogressive or instinctively status-quoist especially when it comes to the social reforms affecting gender orders. The traditional institution of religion could be instrumental to provide what the women in contemporary situation demand. This paper highlights how the Muslim women in India negotiate and mediate this opposition in an Islamic context. To advance the socio-legal recognition of women’s rights, they question the male privilege and patriarchy in a meaningful way without challenging their Islamic doctrines and try to build a feminist consciousness from within religion.

Keywords: feminism, Islam, Muslim women's rights, religious identity

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Authors: Masnur Marzuki

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As in other democratic countries, the constitutional court of Indonesia has the role of interpreting and applying the Constitution in order to preserve its supremacy testing the constitutionality of statutes. With its strong power to enforce and guard the Constitution, the court is now challenged to provide people an opportunity to understand their constitutional rights close up. At the same time, the court has built up an enviable reputation among constitutional courts in new democracies for the technical quality of its legitimacy in the legal sense. Since its establishment in 2003, the Constitutional Court of Indonesia has decided more than 190 statutes in judicial review case. It has been remarkably successful to make a credible start on its work of guarding the Constitution. Unsurprisingly, many argue that the Court has elevated Indonesia’s democracy to a whole new level. In accomplishing its roles judicial review, the basic principle that can be identified is that the Constitutional Court must always be subordinated to the Constitution. It is not being allowed to invade the field of the legislator. In doing so, the court does not have any discretionary political basis in order to create legal norms or provisions that could not be deducted from the Constitution itself. When interpreting a statute “in accordance with the constitution”, the court recognizes and reasserts that it is strictly forbidden to extend the scope of a legal provision in such a way that would create a general norm not established by the law-maker. This paper aims to identify and assess the latest role of Indonesian Constitutional Court in interpreting and applying the Constitution. In particular, it questions 1) the role of the Constitutional Court in judicial review; and 2) the role of the court to assist the legislators in the accomplishment of their functions in order to preserve its supremacy testing the constitutionality of statutes. Concerning positive legislator, jurisprudential and judicial review theories will be approached. The empirical part will include qualitative and comparative research. Main questions to be addressed: Can the Constitutional Court be functionalized as positive legislator? What are the criteria for conducting role of Constitutional Courts as Positive Legislators and how can it be accepted? Concerning the subordination of Constitutional Courts to the Constitution and judicial review, both qualitative and quantitative methods will be used, and differences between Indonesia and German Constitutional Court will be observed. Other questions to be addressed: Can Constitutional Courts have any discretionary political basis in order to create legal norms or provisions that could not be deducted from the Constitution itself. Should the Constitutional Court always act as a negative legislator? However, the Constitutional Court in Indonesia has played role as positive legislators which create dynamic of Indonesian legal development. In performing the task of reviewing the constitutionality of statutes, the Constitutional Court has created legal norms or provisions that could be deducted from the Constitution itself.

Keywords: constitution, court, law, rights

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Authors: Wahyu Kurniawan

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Indonesia developed the legal system radically since 1999. Several laws have been established and mostly the result of transplantation. Laws were made general but legal problems have been growing. In the legal enforcement, the judges have authority to interpret the laws. Authority and freedom are the source of corruption by the courts in Indonesia. Therefore, it should be built the conceptual framework to interpret the transplanted laws as the legal basis in deciding the cases. This article describes legal development based on interpretation of transplanted law in Indonesia by using the Indonesian Supervisory Commission for Business Competition (KPPU) decisions between 2000 and 2010 as the object of the research. The study was using law as a system theory and theories of legal interpretation especially the static and dynamic interpretations. The research showed that the KPPU interpreted the concept that exists in the Competition Law by using static and dynamic interpretation. Static interpretation was used to interpret the legal concepts based on two grounds, minute of meeting during law making process and the definitions that have been recognized in the Indonesian legal system. Dynamic interpretation was used when the KPPU developing the definition of the legal concepts. The general purpose of the law and the theories of the basis of the law were the conceptual framework in using dynamic interpretation. There are two recommendations in this article. Firstly, interpreting the laws by the judges should be based on the correct conceptual framework. Secondly, the technique of interpreting the laws would be the method of controlling the judges.

Keywords: legal interpretation, legal transplant, competition law, KPPU

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Authors: Girma Y. Iyassu Menelik

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The international community has gone through indescribable atrocities resulting from acts of war. These atrocities turned Europe and Africa into a wilderness of bloodshed and crime. In the period 1960- 1970s Africa witnessed unprecedented and well-documented assaults on life and property. This necessitated the adoption, signing and ratification of the International Criminal Court, establishment of the International Court of Justice which is a great achievement for the protection and fulfilling of human rights in the context of international political instability. The ICC came as an important opportunity to advance justice for serious crimes committed in violation of international law. Thus the Rome statute has become a formidable contribution to peace and security. There are concerns that the ICC is targeting African states. However, the ICC cannot preside over cases that are not parties to the Rome statute unless the UN Security council refers the situation or the relevant state asks the court to become involved. The instable international political situation thus deals with criminal prosecutions where amnesty is not permissible or is strongly repudiated. The court has become important justice instruments for states that are unable or unwilling to fulfill their obligation to address legacies of massive human rights violations. The ICJ as a court has a twofold role; to settle legal disputes submitted to it by states, and to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and specialized agencies. All members of the UN are ipso facto parties to the statute of the ICJ. The court gives advisory opinion on any legal question. These courts are the most appropriate fora to pronounce on international crimes and are in a better position to know and apply international law. Cases that have been brought to the courts include Rwanda’s genocide, Liberia’s Charles Taylor etc. The receptiveness and cooperation of the local populations are important to the courts and if the ICC and ICJ can provide appropriate protections for the physical and economic safety of victims then peace and human rights observance can be attained. This paper will look into the effectiveness and impediments of these courts in handling criminal and injustices in international politics as while as what needs to be done to strengthen the capacity of these courts.

Keywords: ICC, international politics, justice, UN security council, violence, protection, fulfilling

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Authors: Fausto Morais

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Artificial intelligence has been widely used in law. Programs are able to classify suits, to identify decision-making patterns, to predict outcomes, and to formalize legal arguments as well. In Brazil, the artificial intelligence victor has been classifying cases to supreme court’s standards. When those programs act doing those tasks, they simulate some kind of legal decision and legal arguments, raising doubts about how artificial intelligence can be integrated into legal reasoning. Taking this into account, the following three issues are identified; the problem of hypernormatization, the argument of legal anthropocentrism, and the artificial legal principles. Hypernormatization can be seen in the Brazilian legal context in the Supreme Court’s usage of the Victor program. This program generated efficiency and consistency. On the other hand, there is a feasible risk of over standardizing factual and normative legal features. Then legal clerks and programmers should work together to develop an adequate way to model legal language into computational code. If this is possible, intelligent programs may enact legal decisions in easy cases automatically cases, and, in this picture, the legal anthropocentrism argument takes place. Such an argument argues that just humans beings should enact legal decisions. This is so because human beings have a conscience, free will, and self unity. In spite of that, it is possible to argue against the anthropocentrism argument and to show how intelligent programs may work overcoming human beings' problems like misleading cognition, emotions, and lack of memory. In this way, intelligent machines could be able to pass legal decisions automatically by classification, as Victor in Brazil does, because they are binding by legal patterns and should not deviate from them. Notwithstanding, artificial intelligent programs can be helpful beyond easy cases. In hard cases, they are able to identify legal standards and legal arguments by using machine learning. For that, a dataset of legal decisions regarding a particular matter must be available, which is a reality in Brazilian Judiciary. Doing such procedure, artificial intelligent programs can support a human decision in hard cases, providing legal standards and arguments based on empirical evidence. Those legal features claim an argumentative weight in legal reasoning and should serve as references for judges when they must decide to maintain or overcome a legal standard.

Keywords: artificial intelligence, artificial legal principles, hypernormatization, legal anthropocentrism argument, legal reasoning

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Authors: Nqobizwe Mvelo Ngema

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This paper argues that the custom of virginity testing has been revived in order to combat against social ills such as unwanted pregnancies, immorality, promiscuity and the spread of HIV/AIDS. However, virginity testing is not free from challenges such as the belief that having sexual intercourse with a virgin can cure men from AIDS, virginity testing is not accurate because there is scientific evidence supporting the fact that there many ways of losing virginity other than sexual intercourse, for example, the usage of tampons and participation in physical activities may tear the hymen. South African parliament took some positive steps in combatting against harm associated with virginity testing by regulating it in the Children’s Act. It is argued, in this paper, that the abolition of virginity testing may lead to paper law and it would be premature to abolish virginity testing in South Africa.

Keywords: equality rights, virginity testing, human rights, interdisciplinary law and legal studies

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Authors: Shwiri Eshwa Chumbow

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This research paper explores the contribution of legal translation in conflict resolution with a specific focus on the Anglophone Crisis in Cameroon. The Anglophone Crisis, which emerged from grievances concerning language and legal systems, has underscored the importance of accurate and culturally sensitive legal translation services. Using documentary research and case study analysis, this paper examines the impact of translation (or lack thereof) on conflict resolution and proposes translation-related solutions to resolve the conflict and promote peace. The findings highlight the critical role of (legal) translation in bridging linguistic and cultural gaps, facilitating dialogue, and fostering understanding in conflict resolution processes.

Keywords: anglophone crisis, Cameroon, conflict resolution, francophone, legal translation, translation

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Authors: Sudir Silwal, Surendra KC

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Nepalese legal system was derived from Hindu sacred before the democratic movement in 1990. Before this movement, Nepal had a patrimonial system. Nepal has ratified the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). Women organizations of the various political parties, different social organizations and women activists are playing the significant role to empower the women through the social awareness campaign across the country. As a result, 33% women representation in the local government has ascertained by the current constitution. The Constitution of Nepal-2015 has mentioned the rights of women as a fundamental right and it also has provisioned the National Women Commission as the constitutional body. This constitution is the model of gender friendly constitution in the world. As per this constitution, the Citizenship certificate is issued based on the lineage of the mother or father along with gender identity. The current constitution has guaranteed 33% women participation in judiciary, bureaucracy and legislation. This constitution further states that the parliament must elect a woman either as the president or the vice president. Similarly same rule is applied to elect the speaker and the deputy speaker in the parliament. In the same constitution, rights of the third gender also has guaranteed. The guiding principles of the constitution further explain that the constitution has followed the rule of positive discrimination and proportional representation of women in all elements of the state. This study shows that the state is not only focused in the representation of women in all structure of the nation but also need to emphasize the enhancement of the capability of the women to make them equal to the men.

Keywords: constitution, empowerment, representation, women's rights

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Authors: Mais Qandeel

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Within the Jewish and democratic Israeli state, as dually characterized, the treatment of citizens differs according to their religious groups and nationalities. The laws and policies against Arab citizens concerning ownership and use of land are the main focus of this article. As the Jewish character has led to Jewish based legal provisions which give the privilege to Jews, first, this article examines the legal bases which distinguish between citizens in Israel based on their religion. It examines the major Israeli laws which are used to confiscate, manage, and lease properties. Second, the article demonstrates the de facto practices against Arab citizens in using lands. Most of the Palestinian land was confiscated and turned over to Jewish owners or to state land, Palestinian citizens are distinguished in using the state administered lands. They are also restricted in using full ownership rights and denied using plots of lands and housing units. Such policies have created, within the same state, a class of secondary citizens who are categorized as non-Jews. Last, within the Basic Law: Human Dignity and Freedom which has served as the constitutional bill of rights for Israelis and also the International law, particularly the International Convention on the Elimination of All Forms of Racial Discrimination, it will be concluded whether these restricted policies against Arab citizens in using land constitute a religion-based-discrimination among Israeli citizens and create a situation of separation and inequality between two groups of people in Israel.

Keywords: Israel, citizens, discrimination, equality

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Authors: A. V. Shashkova

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The aim of the present article is to analyze the position of the Constitutional Court of the Russian Federation on the matter of restricting the constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. The methodological ground of the present Article represents the dialectic scientific method of the socio-political, legal and organizational processes with the principles of development, integrity, and consistency, etc. The consistency analysis method is used while researching the object of the analysis. Some public-private research methods are also used: the formally-logical method or the comparative legal method, are used to compare the understanding of the ‘secrecy’ concept. The aim of the present article is to find the root of the problem and to give recommendations for the solution of the problem. The result of the present research is the author’s conclusion on the necessity of the political will to improve Russian legislation with the aim of compliance with the provisions of the Constitution. It is also necessary to establish a clear balance between the constitutional rights of the individual and the limit of these rights when carrying out various control activities by public authorities. Attempts by the banks to "overdo" an anti-money laundering law under threat of severe sanctions by the regulators actually led to failures in the execution of normal economic activity. Therefore, individuals face huge problems with payments on the basis of clearing, in addition to problems with cash withdrawals. The Bank of Russia sets requirements for banks to execute Federal Law No. 115-FZ too high. It is high place to attract political will here. As well, recent changes in Russian legislation, e.g. allowing banks to refuse opening of accounts unilaterally, simplified banking activities in the country. The article focuses on different theoretical approaches towards the concept of “secrecy”. The author gives an overview of the practices of Spain, Switzerland and the United States of America on the matter of restricting the constitutional rights of citizens to inviolability of professional and banking secrecy in effecting controlling activities. The Constitutional Court of the Russian Federation basing on the Constitution of the Russian Federation has its special understanding of the issue, which should be supported by further legislative development in the Russian Federation.

Keywords: constitutional court, restriction of constitutional rights, bank secrecy, control measures, money laundering, financial control, banking information

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Authors: Kate N. Okeke

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The ever-growing needs of man requiring satisfaction have pushed him strongly towards industrialization which has and is still leaving environmental degradation and its attendant negative impacts in its wake. It is, therefore, not surprising that the enjoyment of fundamental rights like food supply, security of lives and property, freedom of worship, health and education have been drastically affected by such degradation. In recognition of the imperative need to protect the environment and human rights, many global instruments and constitutions have recognized the right to a healthy and sustainable environment. Some environmental advocates and quite a number of literatures on the subject matter call for the recognition of environmental rights via rule of law as a vital means of achieving positive outcomes on the subject matter. However, although there are numerous countries with constitutional environmental provisions, most of them such as Nigeria, have shown poor environmental performance. A notable problem is the fact that the constitution which recognizes environmental rights appears in its other provisions to contradict its provisions by making enforceability of the environmental rights unattainable. While adopting a descriptive, analytical, comparative and explanatory study design in reviewing a successful positive environmental outcome via the rule of law, this article argues that rule of law on a balance of scale, weighs more than just environmental rights recognition and therefore should receive more attention by environmental lawyers and advocates. This is because with rule of law, members of a society are sure of getting the most out of the environmental rights existing in their legal system. Members of Niger-Delta communities of Nigeria will benefit from the environmental rights existing in Nigeria. They are exposed to environmental degradation and pollution with effects such as acidic rainfall, pollution of farmlands and clean water sources. These and many more are consequences of oil and gas exploration. It will also pave way for solving the violence between cattle herdsmen and farmers in the Middle Belt and other regions of Nigeria. Their clashes are over natural resource control. Having seen that environmental rule of law is vital to sustainable development, this paper aims to contribute to discussions on how best the vehicle of rule law can be driven towards achieving positive environmental outcomes. This will be in reliance on other enforceable provisions in the Nigerian Constitution. Other domesticated international instruments will also be considered to attain sustainable environment and development.

Keywords: environment, rule of law, constitution, sustainability

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Authors: M. Naidoo

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Artificial intelligence often requires large amounts of good quality data. Within important fields, such as healthcare, the training of AI systems predominately relies on health and personal data; however, the usage of this data is complicated by various layers of law and ethics that seek to protect individuals’ privacy rights. This research seeks to establish the challenges AI and data sciences pose to (i) informational rights, (ii) privacy rights, and (iii) data protection. To solve some of the issues presented, various methods are suggested, such as embedding values in technological development, proper balancing of rights and interests, and others.

Keywords: artificial intelligence, data science, law, policy

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Authors: Rafael Bezerra de Souza, José Ribas Vieira

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The judicial litigation on socio-economic rights (SERs), in a context of increasing centrality of the judiciary as an area of political debate for civil society actors, has assumed greater importance in the last two decades. This tendency to seek social change through the courts generated a long tradition of research on the role of legal institutions and of legal mobilization in the US and some European countries. However, little is known about these processes in Latin America, Asia and Africa. A significant portion of the Brazilian constitutional doctrine did not bother to investigate the phenomenon of constitutional judicial litigation of socio-economic rights, in a practical and empirical look, from the functioning of democratic institutions. The central issue of this study draws attention to the theoretical and analytic deficit of Brazilian constitutional doctrine: the lack of a holistic understanding of the effects and impact of judicial decisions. Consequently, for a proper understanding was analyzed if the trend of judicial litigation in Brazil - to ensure the fulfillment of its institutional mission to protect and ensure the effectiveness of socio-economic rights - has been accompanied by the establishment of institutional mechanisms that enable decision making and the implementation of SERs in complex cases involving structural and public policy. The lack of empirical studies in Law in order to verify this hypothesis justified the adoption of the case study method as an interdisciplinary methodological strategy between Law and Political Science, aiming to construct an explanation of the Raposa Serra do Sol Case and, in a complementary way, the process-tracing technique. Drawings of small-n type or case studies, when guided by theory, are more suitable to problems it is supposed to increase the potential of intensive analysis of causal processes. As a preliminary result, the Brazilian Supreme Court was not a sufficient agent to implement a relevant social change and to assure the protection of the social rights, because there were few measures that directly impacted the behavior of other institutional political actors and should, therefore, be considered another actor within a complex institutional arrangement.

Keywords: courts, case study, judicial litigation, social change

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Authors: Sonia Boulos

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

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

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