Showing papers on "Fundamental rights published in 2018"

Contestation and Constitution of Norms in Global International Relations

Abstract: Antje Wiener examines the involvement of local actors in conflicts over global norms such as fundamental rights and the prohibition of torture and sexual violence. Providing accounts of local interventions made on behalf of those affected by breaches of norms, she identifies the constraints and opportunities for stakeholder participation in a fragmented global society. The book also considers cultural and institutional diversity with regard to the co-constitution of norm change. Proposing a clear framework to operationalize research on contested norms, and illustrating it through three recent cases, this book contributes to the project of global international relations by offering an agency-centred approach. It will interest scholars and advanced students of international relations, international political theory, and international law seeking a principled approach to practice that overcomes the practice-norm gap.

PrOnto: Privacy Ontology for Legal Reasoning

Abstract: The GDPR (GDPR, REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)) introduces the self-assessment of digital risks and the modulation of duties on the basis of the impact assessment analysis, including specific measures that intend to safeguard the data subject’s human dignity and fundamental rights. Semantic web technologies and legal reasoning tools can support privacy-by-default and legal compliance. In this light, this paper presents a first draft of a legal ontology on the GDPR, called PrOnto, that has the goal of providing a legal knowledge modelling of the privacy agents, data types, types of processing operations, rights and obligations. The methodology used here is based on legal theory analysis joined with ontological patterns.

Communication rights: Fundamental human rights for all.

Abstract: The right to communicate includes the right to "freedom of opinion and expression" and rights and freedoms "without distinction of … language". The 70th anniversary of the Universal Declaration of Human Rights is a time to celebrate and reflect on communication as a human right, particularly with respect to Article 19 and its relationship to national and international conventions, declarations, policies and practices. This review profiles articles from the special issue of International Journal of Speech-Language Pathology (volume 20, issue 1) addressing communication rights from four perspectives: (1) communication rights of all people; (2) communication rights of people with communication disabilities; (3) communication rights of children and (4) communication rights relating to language. Divergent perspectives from across the globe are considered. First-hand accounts of people whose right to communicate is compromised/upheld are included and perspectives are provided from people with expertise and advocacy roles in speech-language pathology, audiology, linguistics, education, media, literature and law, including members of the International Communication Project. Three steps are outlined to support communication rights: acknowledge people - adjust the communication style - take time to listen. Future advocacy for communication rights could be informed by replicating processes used to generate the Yogyakarta Principles.

Blockchains and Data Protection in the European Union

Abstract: This paper examines data protection on blockchains and other forms of distributed ledger technology (‘DLT’). Transactional data stored on a blockchain, whether in plain text, encrypted form or after having undergone a hashing process, constitutes personal data for the purposes of the GDPR. Public keys equally qualify as personal data as a matter of EU data protection law. We examine the consequences flowing from that state of affairs and suggest that in interpreting the GDPR with respect to blockchains, fundamental rights protection and the promotion of innovation, two normative objectives of the European legal order, must be reconciled. This is even more so given that, where designed appropriately, distributed ledgers have the potential to further the GDPR’s objective of data sovereignty.

Exclusion from Public Space: A Comparative Constitutional Analysis

Abstract: Hardly known twenty years ago, exclusion from public space has today become a standard tool of state intervention. Every year, tens of thousands of homeless individuals, drug addicts, teenagers, protesters and others are banned from parts of public space. The rise of exclusion measures is characteristic of two broader developments that have profoundly transformed public space in recent years: the privatisation of public space, and its increased control in the 'security society'. Despite the fundamental problems it raises, exclusion from public space has received hardly any attention from legal scholars. This book addresses this gap and comprehensively explores the implications that this new form of intervention has for the constitutional essentials of liberal democracy: the rule of law, fundamental rights, and democracy. To do so, it analyses legal developments in three liberal democracies that have been at the forefront of promoting exclusion measures: the United Kingdom, the United States, and Switzerland.

Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights

Abstract: Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further benefit from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.

Human Rights in Armed Conflict: Law, Practice, Policy

Abstract: Introduction Part I. Human Rights in Armed Conflict: History of an Idea: 1. From mediaeval sources to modernity 2. The science of warfare and the progress of civilization 3. 1945: whither war? 4. Human rights in armed conflict Part II. Human Rights and Humanitarian Law: Theory: 5. Exclusivity: the misconceived idea of lex specialis 6. Complementarity: maximizing protection 7. Integration: the transformative influence of human rights Part III. Human Rights and Humanitarian Law: Challenges and Commonalities: 8. The right to life: the limits of human rights in armed conflict? 9. The extraterritorial application of human rights: functional universality 10. War as emergency: derogation 11. Human rights and humanitarian obligations 12. Operationalising human rights in armed conflict Part IV. The Dynamics of War and Law: 13. The changing character of war 14. Governing internal armed violence 15. Human rights in situations of occupation 16. Context: the humanization of international law Part V. Enforcement: Practice and Potential: 17. United Nations Human Rights Council: monitoring armed conflicts 18. United Nations High Commissioner for Human Rights 19. United Nations human rights treaty bodies 20. The Inter-American human rights system 21. The European Court of Human Rights 22. The African Commission on Human and Peoples' Rights 23. Monitoring and litigating humanitarian rights: prospects Conclusion.

A Study of the Implications of Advanced Digital Technologies (Including AI Systems) for the Concept of Responsibility Within a Human Rights Framework

Abstract: This study was commissioned by the Council of Europe's Committee of experts on human rights dimensions of automated data processing and different forms of artificial intelligence (MSI-AUT). It was prompted by concerns about the potential adverse consequences of advanced digital technologies (including artificial intelligence (‘AI’)), particularly their impact on the enjoyment of human rights and fundamental freedoms. This draft report seeks to examine the implications of these technologies for the concept of responsibility, and this includes investigating where responsibility should lie for their adverse consequences. In so doing, it seeks to understand (a) how human rights and fundamental freedoms protected under the ECHR may be adversely affected by the development of AI technologies and (b) how responsibility for those risks and consequences should be allocated. Its methodological approach is interdisciplinary, drawing on concepts and academic scholarship from the humanities, the social sciences and, to a more limited extent, from computer science. It concludes that, if we are to take human rights seriously in a hyperconnected digital age, we cannot allow the power of our advanced digital technologies and systems, and those who develop and implement them, to be accrued and exercised without responsibility. Nations committed to protecting human rights must therefore ensure that those who wield and derive benefits from developing and deploying these technologies are held responsible for their risks and consequences. This includes obligations to ensure that there are effective and legitimate mechanisms that will operate to prevent and forestall violations to human rights which these technologies may threaten, and to attend to the health of the larger collective and shared socio-technical environment in which human rights and the rule of law are anchored.

In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations?

Abstract: The International Criminal Court (ICC) is responsible for prosecuting crimes against humanity, war crimes, and genocide. Despite the potential for the ICC to deter human rights abuses, scholars and...

Human Rights on Trial: A Genealogy of the Critique of Human Rights

Abstract: The first systematic analysis of the arguments made against human rights from the French Revolution to the present day. Through the writings of Edmund Burke, Jeremy Bentham, Auguste Comte, Louis de Bonald, Joseph de Maistre, Karl Marx, Carl Schmitt and Hannah Arendt, the authors explore the divergences and convergences between these 'classical' arguments against human rights and the contemporary critiques made both in Anglo-American and French political philosophy. Human Rights on Trial is unique in its marriage of history of ideas with normative theory, and its integration of British/North American and continental debates on human rights. It offers a powerful rebuttal of the dominant belief in a sharp division between human rights today and the rights of man proclaimed at the end of the eighteenth century. It also offers a strong framework for a democratic defence of human rights.

Property Aspects of Intellectual Property

Abstract: For many years, there have been discussions about whether intellectual property (IP) is really property. The property concept, particularly when used in transnational and international concepts, remains somewhat elusive. Here, Ole-Andreas Rognstad comprehensively discusses the use of the property metaphor in relation to IP in a transnational perspective. Rognstad gives an overview of main aspects of the IP/property interface, notably the justification and the structuring of the rights and intellectual property rights as assets. Moreover, he highlights the importance of distinguishing between these aspects, even though they are closely linked to each other. The book takes a transnational approach, dealing with recent developments in European human/fundamental rights law and international investment law, helping readers to understand the practical implications of the IP/property interface. This will be valuable reading for academics, practitioners and policy makers working in the area of IP, and lawyers and philosophers interested in the property debate.

Children’s rights and digital technologies

Abstract: Digital technologies have reshaped children’s lives, resulting in new opportunities for and risks to their well-being and rights. This chapter investigates the impact of digital technologies on children’s rights through the lens of the United Nations Convention on the Rights of the Child. Up until now, not all rights have received the same level of attention in the digital context. Legal and policy discourse in the area of children and digital media predominantly focuses on ‘protection’ rights, albeit with a growing awareness of the tension between ‘protection’ and ‘participation’ rights. ‘Provision’ rights are not often emphasised, other than in the important domain of education. However, all children’s rights should be supported, valued and developed in both online and offline spheres of engagement. Governments, parents, educators, industry, civil society and children’s rights commissioners or ombudspersons should all take up their responsibility to enhance children’s rights in relation to digital technologies, while actively listening and taking account of children’s views when developing laws, policies, programmes and other measures in this field.

Section 377 and The Mental Healthcare Act, 2017: Breaking barriers.

Abstract: The Supreme Court of India recently decriminalised homosexuality by passing a landmark judgment in the case of Navtej Johar and Others v. Union of India. In its judgment, the Court held that Section 377 of the Indian Penal Code, 1860 is unconstitutional in as much as it criminalises consensual sexual acts between two adults. The Court held that Section 377 discriminates against persons of the LGBTIQ community based on their sexual orientation and violates their fundamental rights guaranteed by the Constitution of India. The Court arrived at this conclusion after considering established principles of constitutional law, foreign precedents and expert opinions. However, a crucial part of the Court�s reasoning was based on a close reading of the Mental Healthcare Act, 2017. The Court relied on the anti-discriminatory provisions of the Mental Healthcare Act, 2017 to observe that homosexuality is not a mental illness or mental disorder, and that LGBTIQ persons cannot be discriminated against on the basis of their sexual orientation. The Court�s reading of the Mental Healthcare Act, 2017 and Section 377 is significant as its rationale can be extended further to challenge other laws which discriminate against persons with mental illness. The Court also highlights the responsibilities of mental health professionals and counsellors while providing mental healthcare to LGBTIQ persons. Finally, the Court�s reading of the Mental Healthcare Act, 2017 is also a recognition of its commitment as an anti-discrimination legislation which upholds constitutional values and protects the rights of persons with mental illness.

On the Human Rights Question

Abstract: There is a marked disjuncture today between the generalized critique and rejection of human rights by many progressive and critical commentators, and the embrace of the language of human rights by a variety of movements around the world engaged in struggles for social change. This divide between critical theory and critical practice raises important questions about whether and how movements for fundamental social change should engage with human rights. In contrast to a number of well-established critical dismissals of rights, this article argues, from within the Marxist tradition, that human rights can, and in some cases should, be deployed by social movements in their campaigns. However, reaching this conclusion requires developing an understanding of human rights that gives primacy to social struggle and to a nuanced understanding of the contradictory nature of human rights.

Digital constitutionalism: Fundamental rights and power limitation in the Internet eco-system:

Abstract: During the 1990s, the Internet underwent a great transformation under the influence of a broad set of processes. Popularization was fostered by the invention of the World Wide Web, which opened cyberspace to the masses by providing it with an effective graphical user interface (hypertext markup language (HTML) pages) and an intuitive exploring method (hyperlinks). Internationalization of Internet usage was the long-term result of design principles created during the first decade of the network development process, such as the openness of basic protocols and standards, and their implementability on the least powerful equipment, which allowed interconnection and interoperability to heterogeneous networks, systems and devices all over the world (Braman, 2012). Privatization and commercialization of the Internet were triggered by specific public policies formulated and implemented by the US government, seamlessly between different administrations over a decade (Goldsmith, and Wu, 2006; Mueller, 2004, 2010). These processes, together, produced profound changes in the Internet architecture as well as in its governing arrangements, bringing about a political paradox. On one hand, the increasingly widespread and global dissemination of the Internet raised questions about how to protect users and their fundamental rights online, and how to enable them to participate in Internet policy-making. On the other hand, the transnational private regime running the Internet at the end of the transformation was structurally inconsistent with the traditional approach to these issues, i.e., modern constitutionalism, based on the sovereign authority of the nation-state and focused on

Unaccompanied Children at the United States Border, a Human Rights Crisis that can be Addressed with Policy Change

Abstract: In recent years, unaccompanied minors have been journeying to the United States (U.S.)–Mexico border in great numbers in order to escape violence, poverty and exploitation in their home countries. Yet, unaccompanied children attempting to cross the United States border face treatment at the hands of government representatives which violates their inherent rights as children. The result is a human rights crisis that has severe health consequences for the children. Their rights as children are clearly delineated in various, international human rights documents which merit increased understanding of and recognition by the U.S. government. This paper calls for the improvement of policies and procedures for addressing the rights of unaccompanied immigrant children; it provides specific, rights-based recommendations which work together to safeguard the rights of the child at the U.S. southwestern border.

Can human rights conditionality reduce repression? Examining the European Union’s economic agreements

Abstract: The insertion of human rights commitments into international economic agreements is now a widespread practice. We argue that the effect of such commitments depends on the degree of leverage held by one partner over the other. In a comprehensive analysis of the European Union’s (EU’s) relations with developing countries, we find that human rights clauses are conditionally effective; they are associated with improved political freedom and physical integrity rights only in countries that are more heavily dependent on EU aid. An in-depth look at the EU’s enforcement of its human rights clause in the African-Caribbean-Pacific (ACP) group reveals that the Union most often responds to violations of political rights—particularly coups and flawed elections—and that enforcement is indeed a more powerful catalyst for change in highly aid-dependent states. Alternative explanations—that the impact of the human rights clause depends on legalization, the country’s strategic importance, NGO activity, or domestic institutions—find little support.

Design for Sexual Wellbeing in HCI

Abstract: This workshop focuses on the design of digital interactive technology for promoting sexual wellbeing as a fundamental human rights issue and social justice concern in the field of Human Computer Interaction (HCI). Sexuality related topics have garnered much interest in recent years and there is a need to explicitly engage with the intersections of sexuality and social justice as applicable to the design and development of digital interfaces and interactive experiences. This one day workshop will raise intersectional issues, identify research gaps, gather resources, and share innovation strategies for designing sociotechnical interfaces that promote sexual wellbeing in HCI.

Procedural Review in European Fundamental Rights Cases

Abstract: Library of Congress Cataloging-in-Publication Data Names: Gerards, J. H. (Janneke H.), author. | Brems, Eva, author. Title: Procedural review in European fundamental rights cases / Janneke Gerards and Eva Brems. Description: Cambridge [UK] ; New York : Cambridge University Press, [2017] | Includes index. Identifiers: LCCN 2016046814 | ISBN 9781107183773 Subjects: LCSH: Human rights – Europe. | Civil rights – Europe. | European Court of Human Rights. | Proportionality in law. | Subsidiarity. | Complementarity (International law) Classification: LCC KJC5132 .G47 2017 | DDC 341.4/8094–dc23 LC record available at https://lccn.loc.gov/2016046814

Human rights or social justice? The problem of rights inflation

Abstract: This article debates a paradox in politics, law and social practice: Whereas human rights has become an effective strategy for framing grievances, the increasing appropriation of rights-talk to frame any and all grievances is undermining attempts to successfully address systemic social problems. I argue that issues such as poverty should be framed as social justice rather than human rights. In an attempt to further develop a sociology of human rights, I explore how framing a grievance as a human right shapes the way people understand both the problem and the solution, and the limits to framing social problems as rights violations. Canadians, in particular, typify a broader global experience of increasingly asserting rights-claims in everyday life, from the environment to bullying at school.

Right engineering? The redesign of privacy and personal data protection

Abstract: The idea of building safeguards for privacy and other fundamental rights and freedoms into ICT systems has recently been introduced in EU legislation as ‘Data Protection by Design’. This article st...

The Constitution of Ireland : a contextual analysis

Abstract: 1. Beginnings, Influences and Evolution 2. Constitutional Foundations 3. Government and Oireachtas 4. The President 5. Legislative Power and Interpretation 6. Governance and Public Administration 7. Political Constraints on the Government 8. Courts and the Legal Constraint of the Government 9. Fundamental Rights and Judicial Power 10. Constitutional Change 11. Conclusion

Conventionality control and Amendment 95/2016: a Brazilian case of unconstitutional constitutional amendment

Abstract: This article presents reflections on Brazilian Constitutional Amendment 95/2016, which established the New Tax Regime and consequently the ceiling of public spending in Brazil for a period of twenty years, which has serious consequences for Brazilian public services. The hypothesis defended in the study is that Amendment 95/2016 is an unconstitutional constitutional amendment, since it violates the essence of the Social State present in the original text of the 1988 Constitution and has direct influences on the guarantee of fundamental rights, which constitute stone clauses (clausulas petreas). Thus, the study starts with the technical analysis of the Amendment. Next, the concept and content of the stone clauses in the Brazilian constitution are analyzed to propose the possibility of conventionality control as an alternative, focusing on the Intermerican Convention on Human Rights, UN Convention on the Rights of Persons with Disabilities and International Covenant on Economic, Social and Cultural Rights. It is concluded that conventionality control of the Amendment is imperative. The methodology used is the bibliographic analysis on the themes, as well as the projection of data on the economic and social effects of Amendment 95/2016.

Assuring children's human right to freedom of opinion and expression in education.

Abstract: The Universal Declaration of Human Rights elaborated for children through the United Nations Convention on the Rights of the Child, mandates each child's right to participate in all matters affecting them. In particular, Article 19 includes the child's right to freedom of expression and opinion, access to information and communication choice. However, many barriers placed on children's daily lives often restrict or limit the enactment of children's participatory rights in practice, most noticeably in education. It is often the adult who decides what, when and how children can communicate, and the extent children's views and opinions are sought, considered or incorporated. This paper explores how children's daily lives are mediated in ways that restrict their expression, voice and communication rights. Children spend a significant proportion of their daily lives in education settings yet the restrictions on children's access to information and communication choices do not reflect contemporary pedagogical thinking. Many school settings perpetuate the key participation barriers of adult attitude and knowledge, pedagogical tradition, organisational structure and technological advancement. Such barriers to engagement stifle the realisation of the child's communication rights that then limits educational enhancement. Supporting children's right to communicate via a range of media enables pedagogy supporting voice-inclusive practice.

A New Era for Labor Activism? Strategic Mobilization of Human Rights Against Blacklisting

Abstract: This article examines whether and how international human rights law transforms the grassroots mobilization strategies of labor activists. Drawing on original ethnographic research on the activism of blacklisted workers in the United Kingdom, I show that there is a two-tier process through which human rights norms are interpreted and mobilized, first by legal advocacy groups, then by grassroots activists. Contrary to skeptics who argue that human rights have a “mainstreaming” and “individualizing” effect on labor movements, this research shows that by strategically embedding human rights language in their campaigns, blacklisted workers leveraged media attention and facilitated changes in trade union rights discourse. Findings suggest that the strategic mobilization of human rights differs from other mobilization efforts, since labor activists use human rights language primarily to find a sympathetic audience within a political environment in which trade unions are viewed as a regressive force in the economy.

Cutting edges and weaving threads in the gene editing (Я)evolution: reconciling scientific progress with legal, ethical, and social concerns.

Abstract: Gene-editing technology, such as CRISPR/Cas9, holds great promise for the advancement of science and many useful applications technology. This foundational technology enables modification of the genetic structure of any living organisms with unprecedented precision. Yet, in order to enhance its potential for societal benefit, it is necessary to adapt rules and produce adequate regulations. This requires an interdisciplinary effort in legal thinking. Any legislative initiative needs to consider both the benefits and the problematic aspects of gene editing, from a broader societal and value-based perspective. This paper stems from an interdisciplinary research project seeking to identify and discuss some of the most pressing legal implications of gene-editing technology and how to address these. While the questions raised by gene editing are global, laws and regulations are to a great extent bound by national borders. This paper presents a European perspective, written for a global audience, and intends to contribute to the global debate. The analysis will include brief references to corresponding USA rules in order to place these European debates in the broader international context. Our legal analysis incorporates interdisciplinary contributes concerning the scientific state of the art, philosophical thinking regarding the precautionary principle and dual-use issues as well as the importance of communication, social perception, and public debate. Focusing mainly in the main regulatory and patent law issues, we will argue that (a) general moratoriums and blank prohibitions do a disservice to science and innovation; (b) it is crucial to carefully consider a complex body of international and European fundamental rights norms applicable to gene editing;

Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM:

Abstract: This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the r...

Pragmatism and Multidimensionality in Human Rights Advocacy

Abstract: Human rights appear to be in a state of existential crisis, with academics proclaiming the “endtimes” or “twilight” of the field and a growing sense of human rights pessimism among many commentators. As an adaptation to the challenging contemporary climate for human rights, some critics have asserted that the field needs to become more pragmatic and flexible, and less legalistic. Unfortunately, these calls for reform are rarely accompanied by details, and the literature on the nature of human rights pragmatism is fairly thin. This article will explore what such a pivot might entail. My central contention is that while more flexible and less law-centered approaches can play a useful role in advocacy, they also come with risks and tradeoffs that need to be assessed. The concept of human rights is fundamentally multidimensional, oscillating between moral, legal and political domains, drawing power from each one of them. A truly pragmatic turn in human rights will not involve categorical sensibilities about the value of law-centered approaches in all times and places, but will instead emphasize the opportunities and advocacy hooks available in a particular context, whether moral, legal, political, or otherwise.