Catalogue Of Rights Research Articles

THE ANALYSIS OF HUMAN RIGHTS ‘INFLATION’ IN THE CONTEXT OF EVOLVING INTERNATIONAL REGIME OF WOMEN’S RIGHTS

Without a doubt, the concern about ‘human rights inflation’ reflects the modern world’s increasing ambition, breadth and complexity in developing the human rights regime. This rapidly expanding catalogue of rights has generated discussion about human rights proliferation, devaluation and too vast interpretation. Consequently, some critics perceive new generations of human rights as less relevant, which ultimately is supposed to alter their purpose, legitimacy, and effectiveness. This article seeks to disentangle the inflation objection from other concerns about rights expansionism and to critically assess it. Therefore, it will both analyze the phenomenon of rights inflation as well as evaluate its scope of implication based on the progressive development of women’s rights in the domain of gender-based violence and conflict-related sexual violence. The article will also analyze examples of possible regresses of women’s rights in the topic of reproductive rights based on constitutional court decisions in the United States and Poland. To underline only a few examples, the most striking ones will be presented and they will relate to (i) the evolution of women’s rights invigorated by the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the interpretation of its provisions by the CEDAW Committee, (ii) the recognition of the crime of sexual violence in armed conflicts as well as a more accurate definition of the crime of rape and lastly (iii) the exponential progress of second generation rights, which include social, economic and political emancipation of women. The article will reach its conclusion by explaining the importance of generating a sense of closure in human rights interpretation through drawing strict boundaries around the corpus of ‘proper’ human rights without entitling to a suspicion of claims of too far-reaching cultural and political transformations within societal structure. Instead of calling it human rights devaluation, the author argues that it should be perceived as human rights evolution, which encompasses both a constant adjustment and reinterpretation of rights according to the rapidly changing world as well as the way people understand it.

Constitutional metamorphosis: analysis of amendment procedures to the Basic Law in the context of global transformations

The article is devoted to the study of constitutional metamorphoses in the context of global transformations, in particular the analysis of the procedures for introducing changes to the basic law in different countries of the world. Modifications in modern geopolitical, economic and socio-cultural conditions caused the need to revise and adapt constitutional norms in order to bring the latter to the requirements of modern challenges and realities.
 Thescientific article examinesvarious approaches to the legal mechanism of amending constitutions in countries with various legal traditions and political systems. The author conducts a comparative analysis of such procedures, paying attention to legislative initiatives, the role of parliament, the participation of civil society and other aspects.
 It has been shown that the key aspects of the modification of constitutions are the following issues: a) legitimacy of foundations and subjects that initiate the process of constitutional reform and have the authority to make changes to the constitution; b) the content of constitutional changes and the threshold at which amendments to the constitution introduce transformations into its principles and essence; c) characteristics of legal mechanisms and procedures (models) for amending constitutions, which, on the one hand, guarantee the legitimacy of updated constitutions, and on the other hand, serve as a legal barrier against "constitutional extremism”, that is, unfounded and dangerous for the individual, society and states by constitutional transformations.
 It is emphasized that in the context of constitutional metamorphoses, the following forms of transformation of constitutions should be distinguished: a) amendments to basic laws; b) introduction of amendments to the constitutions; c) change of constitutions.
 It has been established that constitutional metamorphoses in the context of global transformations indicate radical changes and transformations in the constitutional system of various countries or even at the world level, in particular: globalization of constitutional norms; expansion of the catalog of rights and freedoms; changes in the system of the power mechanism; ecological constitutional protection; constitutional innovation; global constitutional standards.

What kind of private law for what kind of Europe? A rejoinder to Martijn Hesselink’s ‘progressive code’

AbstractMartijn Hesselink’s ‘progressive code’ stands on a century-old leftist tradition. What makes the project unique, however, is the transfer from the nation-state context to the European context and its reliance on principles instead of a fully composed catalogue of rights and obligations. My main criticisms are ultimately the lack of a convincing and fully developed background on both sides of his intellectual construct: the public and the private sphere. Martijn Hesselink has an idealising notion of the public sphere, which he does not yet support with a corresponding EU constitutional theory of the public sphere, and he marginalises society as its own private sphere. The understanding of the public sphere needs to be theoretically and conceptually better grounded in order to be convincing and he would have to recognise that the role and function of the private sphere remain a blind spot in the ‘progressive code’.

Customary Law and Limitations to Constitutional Rights in Botswana

ABSTRACT The protection and enforcement of human rights are at the heart of any constitutional framework, which is usually inclusive of limitations aimed at securing a reasonable enjoyment of these rights for all persons. The extent to which the courts have been able to support the enjoyment of constitutional rights by, among other things, striking down laws that impose excessive limitations on such rights has become extremely important. The second chapter of Botswana’s Constitution provides for a catalogue of rights which contain inherent limitations and, in some cases, exemptions. One exemption relates to matters that appear to be insulated from the provisions of section 15 of the Constitution, namely the right to non-discrimination. It is an exemption which brings to the fore issues relating to the limitation of constitutional rights and the application of customary law in Botswana. This article provides insights into the courts’ approach in dealing with these limitations and exemptions, and their attempt to strike a balance between the enjoyment of constitutional rights and the application of customary law.

Post-socialist \u201cilliberal democracies\u201d: do de jure constitutional rights matter?

Are de jure constitutional rules significant for constitutional practice? We pose this question with regard to de jure and de facto protection of constitutional rights in post-socialist countries of Europe and Asia. While, after 1989, these countries enacted broad catalogues of rights and freedoms, they are by now often regarded as electoral, not liberal democracies, i.e. they generally allow for political competition and fair elections but witness considerable violations in civil and minority rights. We use various econometric techniques to determine whether, and under what conditions, de jure rights originating from texts of post-socialist constitutions matter for de facto protection of rights in these countries. Our results reveal no such significant unconditional effect, with the exception of freedom of assembly/association. We do, however, find a positive significant effect conditional on judicial independence, democratization level, and robustness of civil society. The conclusions allow to propose guidelines for post-socialist legislators and bring a contribution to the broader debate on the role of de jure constitutional rules for their de facto equivalents, which has so far been essentially inconclusive.

The New Arab Bills of Rights: a Study on the Constitutions of Egypt, Morocco and Tunisia

This article analyses the changes effected by the new constitutional bills of rights of Egypt, Morocco and Tunisia. In the Introduction, the conceptual and empirical framework is presented, enunciating four descriptive hypotheses: (1) the new Arab bills of rights are longer and denser, (2) they take up the most recent catalogues of rights as expressed in the globalized constitutional models, (3) they recognize the international human rights law as a binding legal category, and (4) they grant a special importance to women, children and minorities’ rights. The testing of these hypotheses, by means of a descriptive statistical analysis and the study of the novelties introduced, constitutes the second section. The third section analyzes the evolution and functional rationale of these new constitutional provisions. Finally, a conclusion is provided, arguing that the new Arab bills of rights are situated within globalized constitutional trends, adjusted with certain regional particularities.

Backlash or Widening the Gap?: Women’s Reproductive Rights in the Twenty-First Century

This article examines legal challenges to women’s reproductive rights in Ireland and the United States, arguing that backlash against reproductive rights is a consequence of the long unsettled position of women’s reproductive freedom in liberal democracies and the catalogue of rights. It examines the legal foundations of reproductive rights and their perceived conflicts with other values, such as religion, and focuses on the current legal challenges to women’s bodily autonomy regarding choice and motherhood. It demonstrates the many contexts in which women have not acquired full reproductive freedom, and explores the nature of the current backlash. It argues that the nature of the backlash is not simply a reclamation of what has been legally guaranteed, but instead a deepening of the preexisting divides within reproductive justice globally.

FORMATION AND DEVELOPMENT OF NATIONAL MINORITY RIGHTS PROTECTION IN INTERNATIONAL LAW

The article focuses on the evolutionary development of international legal regulation in the field of protection of the national minority rights from the Westphalian system of international relations to the present. The aspiration of non-dominant groups to preserve their cultural, religious, or ethnic background was manifested simultaneously with the emergence of nation-states in the seventeenth century. However, since then, the international community has not reached a consensus on the content of the concept of minority: a unified approach to the issue has not been elaborated in either international legal acts, law doctrine, or judicial practice. At the universal level, the protection of minority rights in international law was institutionalized only during the functioning of the League of Nations. The established procedures for the implementation and control over the observance of minority rights within the League of Nations were elaborated in sufficient detail and provided for effective collective security measures to resolve international disputes and problems arising in connection with the protection of minority rights. Indeed, this system also had a number of significant shortcomings that were subsequently taken into account when establishing mechanisms for the protection of minority rights within the United Nations. In reviewing international legal acts after 1945, the following general tendency should be emphasized. It concerns the adoption of a large array of documents in this field, most of which are advisory and general in nature. This is explained by the fact that minority issues are a sensitive area of public relations, and states are reluctant to make this sphere regulated by international law. The Council of Europe Framework Convention for the Protection of National Minorities (1995) became the first legally binding legislative act on the protection of minorities in general, and this fact makes it fundamentally important. The absence of the norms directly aimed at the protection of national minorities in the catalog of rights guaranteed by the European Convention on Human Rights (1950) cannot but affects the efficient application of the mechanism of the European Court by national minorities. However, the link between human rights violations and minority rights allows the latter to fight for the restoration of individual human rights protected by the European Convention, which undoubtedly plays a positive role in the context of the protection of collective minority rights. Keywords: national minorities, periodization, universal system for the protection of human rights, Framework Convention for the Protection of National Minorities, ECHR.

Testimonies of Victims of Human Rights Violations as Primary Sources in the Reports by United Nations Bodies

Victims of crimes, victims of abuse of power and victims of gross and systematic human rights violations have had little relevance to international law. However, since 1985, international human rights law has taken an interest in them and has created four instruments, which establish different notions of victim, as well as a catalogue of rights. Since then, victims have become increasingly prominent in processes involved in seeking justice, truth and reparation. Recently, victim’s testimonies are used as one of the indicators, although not the only one, for measuring compliance and protection of human rights rules in the United Nations system.

The Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of Persons with Disabilities: a dynamic pro unione and pro homine with particular reference to the CJEU case-law

The incorporation of the United Nations Convention on the Rights of Persons with Disabilities into the legal order of the European Union acquires a centrality relevant to the interpretation of the fundamental rules within the framework of the catalog of rights enshrined in the Charter of Fundamental Rights of the European Union. The case-law of the Court of Justice of the European Union constantly reminds us that the Convention is an integral part of the legal order of the European Union and prevails over European Union law.

Redes sociales, consumidores y propiedad intelectual Comentario jurisprudencial a la Sentencia 14/07300, del Tribunal de Gran Instancia de París, de 7 de agosto de 2018

Do users of social networks have a consumer entity? If the answer to this question is affirmative, a catalog of rights is immediately activated, such as, for example, the legitimacy to initiate a judicial proceeding. European legislation on consumer rights is harmonized and has a very protective nature. Until now, in the interaction with social networks, the user was compelled to contract a blank check that involved the transfer of a large part of their rights, such as, for example, the copyright that might correspond to the transferee. The owner of the social network. But, the recent decision of the Court of Large Instance of Paris has reversed the legal position of a group of French consumers, who filed a class action against the social network Twitter, to give them the reason, after describing as abusive most clauses and condemn the social network to pay the French Consumer Association 30,000 euros. This paper analyzes this important judicial resolution, in order to draw the most relevant implications that impact on the right of consumers and users of the civil normative sector, in general, and in intellectual property-une creation du droit- (Berge, 2015), in particular.

La obsolescencia de los derechos

It does not seem that we can speak appropriately about the obsolescence of our constitutional catalog of rights, which has been and continues to be basically valid for the needs nowadays. However, there is a tendency to demand from fundamental rights what they can hardly give if they are still considered not as mere human rights but as constitutional rights, with what this entails. This trend is seen, at least, in three areas: the immediate and direct extension of rights to private relations, the alleged direct efficacy of social rights and the coexistence of international human rights tribunals whose decisions are intended to be imposed independently of terms in which rights are regulated by domestic law, including in the Constitutions. An expansive vision of rights in these areas leads to compromising other aspects of constitutionalism that have always been inseparable from rights: the division of power, the limits of the jurisdictional function and, ultimately, democratic legitimacy.

El nuevo rol de la víctima en el sistema penal acusatorio en México

Con las reformas constitucionales de 2008 y 2011 en México, la víctima ha adquirido un nuevo rol en el procedimiento penal acusatorio, situación en la que jugaron un papel importante la Victimología, el Garantismo Penal y la maximización de los derechos humanos; por lo que la víctima que había sido excluido hoy es considerada como sujeto procesal con un importante catálogo de derechos derivados de la legislación nacional y los tratados internacionales, por lo que se enfatizado la reparación del daño e implementado la justicia restaurativa, colocando los elementos necesarios para la desvictimación.

Old and New Minorities: Diversity Governance and Social Cohesion from the Perspective of Minority Rights

AbstractMinority rights instruments have been traditionally applied to old minority groups. This paper examines to what extent these same instruments are conceptually meaningful to the integration of new minorities stemming from migration. The conviction that minority groups, irrespective of their being old or new minorities, have some basic common claims that can be subsumed under a common definition does not mean that all minority groups have all the same rights and legitimate claims: some have only minimum rights, while others have or should be granted more substantial rights; some can legitimately put forward certain claims – not enforceable rights – that need to be negotiated with the majority, while others should not. In order to devise a common but differentiated set of rights and obligations for old and new minority groups, it is essential to analyse the differences and similarities of both categories of minorities, their claims, needs, and priorities; in this way, it will be possible to delineate a catalogue of rights that can be demanded by and granted to different minority groups. Studying the interaction between traditional minorities and migrants or old and new minority groups is a rather new task because so far these topics have been studied in isolation from each other. It is also an important task for future research in Europe since many states have established systems for the rights of old minorities but have not as yet developed sound policies for the integration of new minority groups stemming from migration.

Europejski regionalny system ochrony praw człowieka a systemy interamerykański i afrykański – realizacja idei uniwersalizmu czy autonomia rozwiązań systemowych

Article was devoted to the issues of the formation of three regional human rights protection systems: European, Inter-American and African. It presents two major groups of issues. The first is the historical perspective of establishment of a regional European system of human rights protection systems (Inter-American and African) largely modeled on European solutions. The second group is a brief analysis of the solutions adopted on the basis of these systems. It consists of a catalog of rights protected, and procedural solutions of supervisory mechanism which determines the degree of efficiency of protection of human rights in different regional systems. This analysis seeks to determine the extent to which these systems are similar to each other and whether they are similar enough that we can speak of implementation of the idea of universalism. In addition, it discusses autonomous solutions adopted on the basis of these systems and for reasons arising from the specific local conditions for which they were introduced captures the differences in these three regional systems of human rights protection.

Los derechos humanos hoy: perspectivas y retos XXII Conferencias Aranguren

The first part, on human rights generations, analyzes the historical evolution of freedoms. Human rights were born within modernity, with marked individualistic imprint as individual freedoms that form the first phase or generation of human rights. This individualistic ideological matrix undergo an extensive process of erosion and challenge in the social struggles of the nineteenth century. These protest movements become apparent the need to complete the catalog of rights and freedoms of the first generation with a second generation of rights: economic, social and cultural rights. The protest human rights strategy is presented today with the novel unequivocally polarized around issues such as the right to peace, the rights of consumers, the right to quality of life, liberty or computer features. Based on it, it opens up, with increasing intensity, the conviction that we are dealing with a third generation of human rights complements earlier stages. The second part is the impact of teledemocracy and cyber citizenship in the human rights sphere. The theme of generations of law extends a reference to the rights of third generation nuclear aspect: The projection of the NT and ICTs in the political process of democratic societies (teledemocracy ) and as one of the main aspects of this phenomenon, the exercise of human rights of political participation through new technological means (cyber citizenship ). We study here the main advantages and risks involved in such technology projections in the exercise of human rights.

El Derecho Laboral como Derecho Humano

La justiciabilidad de los derechos laborales, en particular aquellos conexos con los derechos humanos, materia de este trabajo; no sólo describe fundamentalmente el Derecho Laboral como Derecho Humano, dentro de un gran catálogo de derechos, es también el optar por reconocer -o no- los reclamos de los operadores jurídicos, al momento de su exigencia por parte de los usuarios del servicio público de la administración de justicia. En este escenario, la presente construcción se propone diferenciar los perfiles de los funcionarios de la Rama Judicial con el fin de esclarecer un proceso de consolidación y aplicación en la organización judicial del Derecho a los derechos y, así como también para determinar el impacto de ésta situación sobre la totalidad del ordenamiento jurídico.

Religious Sources and Dimensions of Human Rights

Rights talk has become a dominant mode of political, legal, and moral discourse today, and human rights protections and violations have become increasingly important issues in international relations and diplomacy. Most nation-states now have detailed bills or recitations of rights in their constitutions, statutes, and cases. The United Nations, the European Union, and various religious, cultural, and ideological groups also have detailed catalogues of rights set out in treaties, declarations, conventions, and covenants. Most of the rights and liberties that are in vogue today have millennium-long roots in the Western legal tradition -- a tradition which has been shaped by biblical, classical, Christian, and Enlightenment teachings. Non-Western legal cultures have their own forms and forums of rights talk, too, which have been shaped by Islam, Hinduism, Confucianism, Buddhism, Indigenous Religions, and other faith traditions. These non-Western rights norms are becoming more important to global discussions of human rights today, and promise to bring ample reforms to human rights instruments and implementation in the years ahead. While this chapter focuses on the religious roots and routes of human rights development in the Western tradition, the last section argues that human rights need the resources of all these religious traditions to survive and flourish.

Konstytucyjne aspekty bezpieczeństwa

Experts usually agree that security (meant as safety) is a complex concept and that it refers, in general, to freedom from any threats to the fundamental values. Hence, the author presents in her paper the views on security. But since security as a natural and inalienable right is given particular prominence in the catalogue of rights protected by international law, the paper also addresses the instruments of international law that regulate these issues. The most important Polish legal instrument regulating security issues is the Constitution of the Republic of Poland adopted in 1997. It should be noted that the concept of national security has not been adequately explained in the Polish Constitution and generally, this term does not appear in the text separately. In this respect, Article 5 of the Constitution is of importance: “The Republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the natural environment pursuant to the principles of sustainable development”. Security regulations can also be found in other articles of the Constitution. The author emphasizes that, due to the broad scope of security issues and to the abundance of bodies and their subordinate units and offices that carry out tasks regarding this scope, there is a necessity to harmonize their activities. The constitutional regulations can be helpful in this respect. The Constitution clearly states that higher responsibility in this respect rests with the Council of Ministers. The role of the President is limited to supporting the government. This is clearly visible in the regulations concerning jurisdiction.

The Human Rights After the Spanish Civil War

The aim of this study is to characterize the weak discussion about the Human Rights in Franco's time, not in general, but by testing Vallet de Goytisolo's works. This author is deeply influenced by the lectures of M. Villey, Parisinian philosopher well-known by his denial of Human Rights. A comparative study of these authors will be done focusing on two – faced aspects : the strength and fragility of their doctrines. Both authors are defined as supporters of the Methodical Realism (Aristotelian-Thomist school), although their arguments and sources are very similar, their purposes and conclusions are different. Juan Vallet does not reject the Human Rights, but he prefers the denomination of ethical-legal principles, that is, moral categories that must guide the legislative and judicial praxis. The root of these ethical-legal principles is the ethical-natural principles extracted at natural order, and the duty of all authority is to adequate his rules to the nature of things, exactly as in Saint Thomas. In Vallet's works, the theoretical reason for this rejection is that the notion of fundamental right is scientifically unsatisfactory to understand the complexity of the social reality. The practical reason defends that the Civil right should not be confused with the power or faculty of the individual, errors of nominalism, but the origin of these powers is to be found in the context of a particular legal relationship. However, in the end, this catalogue of rights will be not feasible for the citizen, since these rights are at the mercy of the legislator or the judge. They are liable to obey these principles, only morally.