Enforcement Of Rights Research Articles

Commentary: Voluntary Innovations versus Enforceable Rights

Public Administration ReviewVolume 74, Issue 2 p. 244-245 ARTICLE Commentary: Voluntary Innovations versus Enforceable Rights Suzanne Y. Mattei, Suzanne Y. Mattei New Yorkers for Patient & Family Empowerment, IncSearch for more papers by this author Suzanne Y. Mattei, Suzanne Y. Mattei New Yorkers for Patient & Family Empowerment, IncSearch for more papers by this author First published: 19 March 2014 https://doi.org/10.1111/puar.12205Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat No abstract is available for this article. Volume74, Issue2March/April 2014Pages 244-245 RelatedInformation

An Empirical Analysis of Non-Competition Clauses and Other Restrictive Post-Employment Covenants

Employment contracts for most employees are not publicly available, leaving researchers to speculate on whether they contain post-employment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able to examine these noncompetition covenants, including post-employment covenants not to compete (“CNCs” or “noncompetes”), non-solicitation agreements (“NSAs”), and non-disclosure agreements (“NDAs”). What we find confirms some long-held assumptions about restrictive covenants, but also uncovers some surprises. We begin by discussing why employers use restrictive covenants and examining how the courts have treated them. We then analyze an extensive sample of CEO employment contracts drawn from a large random sample of 500 S&P 1500 companies. We find that 80% of these employment contracts contain CNCs, often with a broad geographic scope, and that these generally last only one to two years. Similarly, we find that NSAs routinely appear in these contracts, barring solicitation of the firm’s employees and customers or clients. We demonstrate that NDAs are prevalent and prohibit the CEOs from disclosing unspecified “confidential information.” In addition, we note that there is a strong “California effect,” whereby firms from that state are less likely to put CNCs in employment contracts. Our research also uncovers several previously undocumented trends. First, we see a robust trend in these contracts of more and more restrictive covenants appearing over time and with greatly expanded enforcement rights for the firm. Second, we find clear path dependence for these clauses, with a prior CNC being a convincing predictor of their use in future employment contracts. Third, longer-term contracts are more likely to have CNC clauses than short-term contracts, most probably because the firm has more confidence in making investments in CEOs that are committed to staying for longer periods. We argue that this shows that for some firms the risk of harm from a departing executive may simply be more acute than with other firms.

The Reciprocity Theory of Rights

This article provides an explanatory account of a central class of moral rights; their normative grounding, the conditions for their possession and forfeiture, and their moral stringency. It argues that interpersonal rights against harm and rights to assistance are best understood as arising from reciprocity relations between moral agents. The account has significant advantages compared with rivals such as the interest theory of rights. By explaining the differential enforceability of rights against harm and rights to assistance, the reciprocity theory helps to refute an argument made by Cecile Fabre that the poor may have a justification for engaging in war against the affluent to compel them to fulfil their duties of assistance to the poor.

The Premises, Assumptions, and Implications of Van Gend en Loos: Viewed from the Perspectives of Democracy and Legitimacy of International Institutions

In its Van Gend en Loos judgment, the ECJ assigned citizens directly enforceable rights vis-a-vis their respective state executives, and authorized national courts to protect those rights. What explains the Court's suspicion of state executives as the sole actors to implement Community law (acting directly or through the Commission)? What justifies its confidence in the ability of the national courts to protect the individuals? We submit that the ECJ was informed by the premise that national courts acting in unison could withstand political pressures and protect individuals while implementing the Treaty. Moreover, the ECJ understood that its interaction with national courts would put it in a position potentially to offer significant support for citizens of relatively weaker countries against various predatory policies employed by the more powerful states in the organization. In this article we explore these premises and present evidence to support them. More generally, we argue that there is good reason to endorse this model of judicial activism as a means to ensure democracy as judged by the effective and informed participation of individuals in public decision-making that affects them - within international organizations. This judgment demonstrates the promise of greater interaction and coordination between national and international tribunals in preventing democratic failures at both the national and international levels. Although judicial intervention often pre-empts public deliberation, it can also encourage it; although it may operate to pre-empt the vote, it can also function to ensure it.

Improving Access to Environmental Justice under the African Charter on Human and Peoples’ Rights: The Roles of NGOs in Nigeria

Nigeria is a signatory to the African Charter on Human and Peoples’ Rights (‘African Charter’). The African Charter was domesticated into Nigerian law via the instrumentality of the African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act 1983. The abundance of case law in Nigeria on the African Charter suggests that the domestication of the charter has broadened the domestic enforcement rights. Accordingly, the charter has both international and human rights ramifications for environmental justice in Nigeria. Despite the importance of the charter to human rights enforcement, environmental justice is still very much a pipe dream in Nigeria. The reasons for this conundrum include the weak regulatory regime in the oil and gas industry, the lack of political will by regulatory agencies to enforce oil and gas laws and regulations, the endemic corruption and judicial obstacles amongst others. This paper will focus on the various strategies used by non-governmental organisations (NGOs) to improve access to environmental justice by stakeholders via the instrumentality of the African Charter. Furthermore, it will provide a critique of the oil and gas industry in Nigeria where environmental injustice or degradation arising mainly from the activities of the oil multinational corporations (oil MNCs) are localised. Notwithstanding the institutional barriers to environmental justice in Nigeria, NGOs have utilised the provisions of the African Charter to improve access to environmental justice for victims of the activities of the oil and gas multinational corporations (oil MNCs) operating in the Niger Delta region of Nigeria.

Corporate Personality and the Collective Humanity of Legal Persons: Aggregating the Rights of Stakeholders and Redefining Nationality in International Adjudication

Under traditional public international law, the rights of shareholders are limited by what the International Court of Justice deemed to be the general principles of corporate law, which draw a bright-line distinction between corporations as legal persons and their shareholders. According to the ICJ, this distinction requires a legalistic approach to defining the nationality of a legal person and limiting that nationality exclusively to the state of incorporation for the purposes of diplomatic protection. However, since this analysis was developed by the ICJ, over 40 years ago, the fields of international investment and human rights law have increasingly blurred the line between legal persons and their natural stakeholders. As such, there is an emerging need for a more clear definition of corporate rights in public international and their distinction from the rights of shareholders. The primary purpose of the paper is to develop a universally applicable test for determining whether corporations and other purely legal entities have justiciable and enforceable rights as petitioners in international human rights mechanisms and international investment arbitration. The policy behind the test basically inverts shareholder derivative rights which allow shareholders to sue on behalf of a corporation when the management of the corporation is not acting in the corporation's best interests. The proposed test asks the question of whether the corporation has the right to take action on behalf of the shareholders as the aggregation of their human rights and the answer would depend upon whether the shareholders had assigned such rights to the corporation. It is worth noting, though, that this premise shift is meant to be limited to the question of determining what the break down ought to be between the rights held exclusively by the corporation and those that it shares with its shareholders, it is not at all intended to suggest that the corporate form must be completely overhauled. Additionally, the paper proposes an analogue approach to determining the nationality of a corporation for the purposes of establishing its purported home state’s right to diplomatic protection on its behalf. This approach is designed to be used to strip away the legal fiction of citizenship based on incorporation when the circumstances of the case indicate that a state other than the state of incorporation may have a greater interest in the injury suffered through its impact on stakeholders who are citizens of the state invoking an equitable right to diplomatic protection.

Personality disorder: strategies for protecting celebrity names and images in the UK

Explaining terms The term ‘image rights’ is often used synonymously with ‘personality rights’ or, sometimes, ‘publicity rights’. Image rights refer to a person’s ability to prevent unauthorized use of his name, likeness or other essential personality features, such as their physical style, nicknames, signatures or even voice. Licensing aspects of personality has become a lucrative commodity. However, in contrast to many other jurisdictions, there is currently no single umbrella right in the UK that protects image rights. The two potentially most celebrity-friendly legal rights available in other countries, namely personality image rights and the right of privacy, have steadfastly been refused recognition by the courts of England and Wales. Instead, those seeking to protect their image rights have had to rely on a medley of unconnected statutory or common law legal rights, primarily comprised of trade mark law, passing off and breach of confidence. In the absence of a free-standing personality or image right, this disparate framework has led the courts to stretch the scope of existing rights, sometimes reluctantly, to strike an appropriate balance between competing interests. This has become an increasingly challenging task, particularly in the borderless world of the internet, where information can be disseminated to a global audience almost instantaneously and anonymously. A creative and imaginative approach is therefore required by practitioners when advising on strategies to protect name and image rights in the UK, drawing upon myriad rights the application and merit of which will depend on the facts of each case. In this article, we explore each of the potentially enforceable rights in the UK and consider their relative strength and breadth before looking at practical strategies to enforce them to try and attain the desired scope of protection. We also assess some of the specific issues raised by the online world, including the challenges created by cybersquatting and unauthorized social media activities. A high-level outline is also provided on how image rights have been protected in other jurisdictions, along with an analysis of the Martinez case 1 before the Court of Justice of the European Union (CJEU) which has paved the way for claimants to ‘forum shop’ by bringing claims in more image-right-friendly jurisdictions within the EU, even against a UK-based defendant.

Evaluating Position of Bangladesh to Combat ‘Adulterated Food’ Crisis in Light of Human Rights

Right to food is one of the human rights to which people are entitled simply by virtue of being born as human beings. Though in the context of Bangladesh, ‘Right to food’ is only one of ‘Directive Principles of State Policy’ which is unenforceable in nature, but in this paper I tried to link this right with other enforceable human rights so that State cannot neglect or refuge to implement this very right. There are various dimensions of ‘Right to Food’ and food adulteration is one of them. Food adulteration has now become a major threat to public health and because of adulterated food people are suffering various types of health problems. In this paper I tried to sort out the approach of the government to deal with this issue and examined the efficiencies of stake-holders. I tried to sort out challenges and prospects of this issue and suggested recommendations. Lastly I concluded emphasizing on changing of approach of government by considering inclusion of the ‘Right to Food’ in the broader term of ‘Right to life’ to make this rhetoric right into a real and enforceable right. I adopted qualitative approach and used secondary sources, i.e. newspaper, articles, seminar proceedings, websites etc.

The State's Enforcement Monopoly and the Private Protection of Property

So the nature of War, consisteth not in actuall fighting; but in the known disposition thereto – Hobbes, Leviathan, Chapter 13 The modern state has monopolized the legitimate use of force. This concept is twofold. First, the state is empowered with enforcement rights; second, the rights of the individuals are restricted. In a simple model of property rights with appropriation and defense activity, we show that a restriction of private enforcement is beneficial for the property owner, even if there are no economies of scale from public protection. We emphasize the role of the state as a commitment device for a certain level of enforcement. However, commitment will only work if the state can regulate private protection, such as private armies and mercenaries. (JEL: K42, P14, P37, P48, N40)

The medicines situation in Chile: A critical appraisal from the academy

Chile is an upper middle income country which health conditions have improved considerably over the last decades. It has a dual health system of both public and private health insurance and service provision, stratified by income and risk. Since 2000, Chile began a reform of the health system with the National Explicit Health Guarantee Regime as the core of the reform. It aims to be a comprehensive system of legally enforceable rights to re- ceive quality healthcare with maximum waiting times, limited co-payments for priority health conditions. These health guarantees approach to providing universal and equitable coverage for quality healthcare in the dual health system. The pharmaceutical market is served today by local laboratories. The private channel distribution is concentrated in three pharmacy chains which have almost 1,200 shops all along the country. Chile holds the third place in Latin America where the biggest amount of medicines per inhabitant is sold. In 2013, a new legislation (Pharmaceutical's Law) was approved. Its main purpose was to encourage greater competition and transparency in the pharmaceutical market. The pharmaceutical commercial practices were useful to give medicines a relevance that normally did not have. However, the generation of alternatives proposals that allows the analysis of medicines under a different vision is necessary.

The Intersection of Statelessness and Refugee Protection in US Asylum Policy

Executive Summary More than ten million people are stateless today. In a world of nation states, they live on the margins without membership in any state, and, as a consequence, have few enforceable legal rights. Stateless individuals face gaps in protection and in many cases experience persecution that falls within the refugee paradigm. However, US asylum policy does not adequately address the myriad legal problems that confront the stateless, who have been largely invisible in the jurisprudence and academic literature. Two federal appellate court opinions shed new light on the intersection of statelessness and refugee law in the United States. In 2010, Haile v. Holder examined the asylum claim of a young man rendered stateless when the Ethiopian government issued a decree denationalizing ethnic Eritreans. In a 2011 case, Stserba v. Holder, the court reviewed an asylum claim by a woman who became stateless when the Soviet Union collapsed, and the successor state of Estonia enacted citizenship legislation that included a language requirement. This article analyzes the opinions which suggest that state action depriving residents of citizenship on ethnic and other protected grounds warrants a presumption of persecution. This article also identifies additional circumstances in which stateless individuals may have a well-founded fear of persecution that qualifies them for asylum in the United States. In addition, this article notes that although far too many stateless individuals face persecution, not all of them do. Stateless persons who do not fear persecution, however, are also vulnerable. The absence of state protection condemns them to a precarious existence and their inability to obtain passports or other travel documents often prevents their return to states where they formerly resided. The refusal of most states to admit noncitizens frequently keeps stateless persons in limbo. Stateless individuals stranded in the United States live under a supervisory patchwork that serves neither their interests nor those of the United States. Rather than relying on incremental case law developments and inapposite regulatory schemes, the US State Department and the Department of Homeland

Sverre Molland. The Perfect Business? Anti-trafficking and the Sex Trade along the Mekong. Honolulu: University of Hawai`i Press, 2012, viii+276 p. Susan Kneebone and Julie Debeljak. Transnational Crime and Human Rights: Responses to Human Trafficking in the Greater Mekong Subregion. Oxon: Routledge, 2012, xiii+276 p.

The Perfect Business? Anti-trafficking and Sex Trade along Mekong SVERRE MOLLAND Honolulu: University of Hawai'i Press, 2012, viii+276 p.Transnational Crime and Human Rights: Responses to Human Trafficking in Greater Mekong Subregion SUSAN KNEEBONE and JULIE DEBELJAK Oxon: Routledge, 2012, xiii+276 p.Recently, as response to global crisis of human trafficking, more attention has been paid to human trafficking in Greater Mekong Subregion (GMS). However, literature of human trafficking mainly focuses on prostitution and irregular migration, and always considers maximization of profit as central logic behind human trafficking. But this is only part of story.Explaining social-cultural discourses of human trafficking in GMS, Sverre Molland, Susan Kneebone, and Julie Debeljak present alternative perspectives on human trafficking in GMS. In their opinions, there is tension between discourse of policy enforcement and human rights in region.Transnational Crime and Human Rights: Responses to Human Trafficking in Greater Mekong Subregion evaluates legal policy frameworks for responding to human trafficking in GMS. At international, national, and subnational levels, authors point out two essential contexts in human trafficking, namely, prostitution and labor migration. Meanwhile, they apply Foucault and Habermas' ideas about discourse to evaluate competing discourses have shaped policies and policy responses have respectively changed discourses.For instance, Kneebone and Debeljak adopt Foucault's concepts of bio-politics and governmentality1) to illustrate trafficking discourses at both global and regional level not only explaining the increased interests in 'securitization' by those who are in power, but also analyzing why some discourses that may unsettle status quo are excluded (Kneebone and Debeljak, p.24).In The Perfect Business? Anti-Trafficking and Sex Trade along Mekong, Sverre Molland comments on three discourses of traffickers, victims, and anti-traffickers in human trafficking along Thai-Lao border, with specific focus on border towns of Vientiane and Nong Kai. At same time, Molland interprets human trafficking along Thai-Lao border from three theoretical approaches. First, he utilizes discourse2) to explain that institutional practices do not only shape external world, but also respond to it. Second, he adopts practice theory to explain how individuals and groups employ range of strategies and maneuvers to archive certain ends, and internalize these very same ends (Molland, p. 14). And third, he introduces Jean-Paul Sartre's analysis of bad faith3) to explain deliberate ignorance in human trafficking.Molland carefully analyzes and income hierarchies within sex industries in Vientiane and Nong Kai, which are different from idealized depiction of human trafficking. He concludes that human trafficking is not parasitic on migration flows from poorer to richer areas. In many cases advanced by Molland, price for commercial sex in Laos is higher than that in Nong Kai (Molland, p. 127). Furthermore, Lao sex workers cross border to work in Nong Kai, who break logic of maximization of utility. Molland highlights fact that analytical models assumed by anti-traffickers do not explain movement of Lao sex workers mentioned above.In both books, authors pose serious challenges both analytically and methodologically to literature on human trafficking in following three areas.First of all, two books criticize effectiveness of definition context of human trafficking in GMS.In The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol),4) one of most essential international texts to any study on human trafficking, definition context of human trafficking contains a range of contradictions and ambiguities (Molland, p. …

From the Principle of Linguistic Diversity to Enforceable Language Rights in the European Union

From the Principle of Linguistic Diversity to Enforceable Language Rights in the European Union

Law as a System of Rights: A Critical Perspective

The “rhetorical incorporation of human rights terminology” into domestic law is the central concern of this article. Over the last 20 years or so, countries have faced international pressure to conform to human rights standards in order to enjoy legitimacy. However, there is a huge gap between what is legalized as “human rights” in domestic laws and what is set forth as “human rights” in international human rights instruments. Based on this presupposition that a proper incorporation of human rights on the books is a prerequisite for putting them into practice, this study by adopting a Systems Thinking approach seeks to show that law as a soft system on the books is more than the name and number of rights. It is a complex whole whose function depends on not only the name and number of rights but also different features of rights and the relationships between them. To this end, law is conceived as a system of rights that has five major features including the “frame of reference,” “scope of rights,” “orientation of rights,” “enforceability of rights,” and “realizability of rights.” The way of codification of human rights with respect to each of these features makes a big difference in implementing human rights in practice. To develop a heuristic devise for evaluating the situation of human rights in current legal systems, the conceptual space of law as a system of rights is depicted in a matrix called a “Rights Fabric Matrix.”

The Bankruptcy-Law Safe Harbor for Derivatives: A Path-Dependence Analysis

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This article argues that these rights and immunities result from a form of path dependence, a sequence of industry-lobbied legislative steps, each incremental and in turn serving as apparent justification for the next step, without a rigorous and systematic vetting of the consequences. Because the resulting “safe harbor” has not been fully vetted, its significance and utility should not be taken for granted; and thus regulators, legislators, and other policymakers — whether in the United States or abroad — should not automatically assume, based on its existence, that the safe harbor necessarily reflects the most appropriate treatment of derivatives transactions under bankruptcy and insolvency law or the treatment most likely to minimize systemic risk.

Takeovers and Countering Short-Termism in Target Boardrooms

This two-part article considers the extent to which UK company law and takeover regulation may have contributed to the supposed short-termism exercised by target directors in takeovers, that is, target directors focusing only on short-term financial gain to the current shareholders, rather than the target’s long-term wealth creation. This article argues that general company law and takeover regulation do not mandate target directors to strictly prioritise the short-term financial interests of the company when determining whether to recommend a particular takeover bid. While company law and takeover regulation require the target board to consider stakeholders’ interests, neither shareholders nor stakeholders have an enforceable right of action against the directors in connection with their failure to do so.

Human rights and mortgage repossession: beyond property law using Article 8

Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.

Restricting Justice: Political Interventions in the Home and in the Market

Restricting Justice: Political Interventions in the Home and in the Market

Australian Ombudsman and Human Rights

Since the 1970s governments across most continents have increasingly utilised the ombudsman institution to protect and promote human rights. Consequently, the role ombudsman play in strengthening good governance and enhancing human rights is subject to sustained international academic analysis. Given that the majority of Australian government or classical ombudsmen commenced operation in the 1970s there is a comparative dearth of discussion in this country as to what human rights role, if any, Australian ombudsmen perform. This article aims to fill this gap. It identifies three elements of the operation of Australian ombudsmen which afford human rights protection. Firstly, the individual complaint-handling role of ombudsmen abuts human rights in many areas within ombudsmen jurisdiction such as: immigration; prisons; education and welfare. Secondly, the own motion investigation function of the ombudsmen addresses systemic administrative processes and policy deficiencies and thereby may operate to prevent future abuse of human rights. Thirdly, the ombudsman institution is an effective vehicle for the enforcement of rights, being free and accessible and thus theoretically, more widely available than more traditional avenues of legal review (such as litigation) to a disadvantaged demographic. The article concludes that the synergy of human rights and classical Australian ombudsmen requires acknowledgment, appreciation and exploration.

Achieving effective universal health coverage with equity: evidence from Chile

Chile's 'health guarantees' approach to providing universal and equitable coverage for quality healthcare in a dual public-private health system has generated global interest. The programme, called AUGE, defines legally enforceable rights to explicit healthcare benefits for priority health conditions, which incrementally covered 56 problems representing 75% of the disease burden between 2005 and 2009. It was accompanied by other health reform measures to increase public financing and public sector planning to secure the guarantees nationwide, as well as the state's stewardship role. We analysed data from household surveys conducted before and after the AUGE reform to estimate changes in levels of unmet health need, defined as the lack of a healthcare visit for a health problem occurring in the last 30 days, by age, sex, income, education, health insurance, residence and ethnicity; fitting logistic regression models and using predictive margins. The overall prevalence of unmet health need was much lower in 2009 (17.6%, 95% CI: 16.5%, 18.6%) than in 2000 (30.0%, 95% CI: 28.3%, 31.7%). Differences by income and education extremes and rural-urban residence disappeared. In 2009, people who had been in treatment for a condition covered by AUGE in the past year had a lower adjusted prevalence of unmet need for their recent problem (11.7%, 95% CI: 10.5%, 13.2%) than who had not (21.0%, 95% CI: 19.6%, 22.4%). Despite limitations including cross-sectional and self-reported data, our findings suggest that the Chilean health system has become more equitable and responsive to need. While these changes cannot be directly attributed to AUGE, they were coincident with the AUGE reforms. However, healthcare equity concerns are still present, relating to quality of care, health system barriers and differential access for health conditions that are not covered by AUGE.