Framing Of Rights Research Articles

The Right to Annual Leave as a Basic Guarantee for Safe and Healthy Conditions at Work. Remarks Based on Lithuanian and Polish Legal Regulations

The right to annual leave as originated from the need to protect human dignity is a fundamental right for people performing work and therefore requires strong and adequate protection at the national level. Notwithstanding the legal discourse on placing certain entitlements in the frame of rights or freedom, this right requires legal remedies that allow its full enjoyment by assigning responsibilities and duties to the parties to the employment relationship. This manuscript aims to evaluate the Lithuanian and Polish labour legislation through the prism of their constitutional and statutory law provisions, taking into account the supranational fundamental principles related to this subject, as well as a discussion related to the scope of labour law and the level of guarantees for employed people. Therefore, since the right to health and safety needs to be fully encompassing, the subjective or objective focus of protection (the ‘per worker’ or ‘per contract’ approach) concerning cases of concurrent contracts with one or more employer(s) will be part of the discussion. This analysed topic has become a part of the extended scientific discourse related to issues of the future world of work, determined by the dissemination of atypical and novel forms of employment and their consequences: e.g. lowered social protection and precarious employment. In relation to the above point, the need for protection of health and safety of the employed constitutes the focal point for all labour protective legislation and requires a focus on issues connected with the protection of the individual rights.

Are Investor and Indigenous Protections Competing or Coordinating?: The Framing of Rights of Chevron, Ecuador and the <i>Lago Agrio</i> People

This paper utilises the Chevron/Ecuador dispute as a case study in order to examine the relationship between the 'rights' and obligations of three interested groups: indigenous (Lago Agrio) people, the nation-state (Ecuador) and the foreign investor (Chevron/Texaco). The case offers particular insight in that it demonstrates how investment arbitration frames the rights of these groups, arising from a foreign investor's oil operations on a local indigenous community. The focus of this paper is to analyse whether the international investment dispute was framed in such a way that attempts to reconcile legally embedded indigenous protections (both at the international and domestic level) and foreign investment protections and offers reasons, if not framed in such a manner, why this is may be the case.

Implementing a Circle of Accountability: A Proposed Framework for Judiciaries and Other Actors in Enforcing Health-Related Rights

As more states incorporate health-related rights into their national constitutions, judges are increasingly being asked to enforce access to entitlements as well as to regulate the conduct of executive branches in relation to health. Decisions made by judicial bodies in the context of health rights litigation have far-reaching consequences, not only directly on litigants but also often indirectly on the broader population. This article argues that remedies should not be appended to broken health systems. For a meaningful “circle of accountability,” legal opportunity structures that inhibit access to justice must be considered alongside the framing of rights during adjudication, as well as procedural protections for litigants, in addition to the role of the judiciary in monitoring and enforcement of decisions post-judgment. The application of a reflective, purposive approach at each of these points in the judicial process has significant potential to enhance the impact of judicialization of health rights, in terms of equity and accountability within health systems, and beyond. But access to justice and the ability to enforce judgments must also be contemplated by political actors from the beginning of the policy cycle.

Social solidarity and the right to health: essential elements for people-centred health systems.

The right to health has been advanced as one of the key elements to creating pro-poor people-centred health systems (Hunt and Backman 2008; Gruskin et al. 2012). However, one of the challenges for realizing the right to health is the seeming conflict between public health utility and the entitlements afforded by a human rights approach to health. This dichotomy begs two sub-questions, both of which have relevance for building responsive health systems. Firstly, human rights affords individuals important protections against state victimization; yet where the state is acting to advance a public good, including action to realize the right to health, its actions may well infringe on individual rights. How to balance these competing rights imperatives in ways that are justifiable and fair, so that health policies and programmes are responsive to people’s individual freedoms presents one set of challenges to building people-centred health systems. A second, and related challenge for rights-based approaches to health systems, is one more related to the normative content of the right to health and how it is interpreted. Here, a tension exists in the nature of the entitlement. When the right to health is interpreted and operationalized as an individual entitlement to a health benefit, it may undermine or even contradict public health efforts aimed at realizing health benefits for collectives, and so potentially limit the contribution possible to building people-centred health systems. It is this second problem that this article principally seeks to address, drawing on the experience of the Learning Network for Health and Human Rights (LN) to reconceptualize the right to health in its collective dimension. However, because there is a tremendously strong and deeply rooted utilitarian ethic in Public Health that appears to render public health decision makers deeply suspicious of claims that might redirect resources in ways inconsistent with maximizing public utility, we start by reflecting on how a human rights approach can manage the trade-off between individual freedoms and efforts to advance public health good. We then map out the contours of a debate over the nature of the entitlement contained in the right to health, drawing both on our experience through structured reflection and on the literature to problematize the individualist framing of rights in the construction of responsive health systems. We draw also on non-Western philosophical perspectives to argue that a more useful framing of health rights involves foregrounding social solidarity in claims to collective health (Stuttaford et al. 2012a), a perspective more consistent with the principles of public health, which emphasize ‘collective action by society’ as essential to ‘the art and science of promoting and protecting good health’ (Last 2007). Lastly, we conclude that if claims to the Right to Health are framed as strengthening the collective agency of the most vulnerable, then recognizing the importance of social solidarity within the right to health can be an important strategy for building responsive health systems (Hunt and Backman 2008; Meier et al. 2010).

Rights and American Constitutional Identity

Much of contemporary constitutional theory underestimates the disharmonies within and disharmonies of constitutional orders. This article examines the dissonance characterizing constitutional identity that is present either in the disjunction between a constitution and the social order within which it functions, or between commitments internal to the document itself. From very early on, American framing of rights has revealed a tension between individual and collective meanings, between rights of persons and rights of the people. This article explores the manifestation of this tension in the evolution of the vexing concept of unenumerated rights. While expressive of the particularities of the American constitutional experience, the story illustrates a broader developmental process that is endemic to the constitutional condition.

The predicament of justice: fifty years of Armed Forces Special Powers Act in India

Militarisation and structural violence under the Armed Forces Specials Powers Act (AFSPA) is tied to a strong moral framework to proselytise recalcitrant citizens. Deploying Jacque Derrida's point that law is not justice, this paper highlights how the pursuit of justice within the framework of law is a challenging task. Interrogating the contentions around what constitutes ‘justice’ under the AFSPA, this paper exposes how states legitimise lawlessness through draconian laws like the AFSPA. In this manner, lawlessness is established as a precedent for states to reproduce forms of lawless regimes and undemocratic mechanisms. This paper proposes that along with the campaigns to repeal the AFSPA, we need to reflect upon what kind of justice we seek. Repressive and discriminatory regimes of law, government or practice survive even after they have been formally dismantled. Here, both the state and its citizens negotiate reality regarding the limits of justice in their own way. For the Indian state, it has had to constantly over-extend its coercive powers in order to control the situation. While for its citizens who live under the AFSPA, such a reality is not only a matter of concern but it also redefines their position as citizens/subjects, to the extent that they question the very foundations of democracy, the language of rights and the unsatisfied appeal of justice. Their negotiations are a reminder that the state apparatus' exercise of power has largely remained unchanged in Northeast India. Despite the framing of rights – be they as part of colonial edicts or postcolonial constitutions – there are spaces where the limits of this discourse are constantly questioned.

Acesso à Informaçâo do Estado: Os Arquivos, a Transparêncìa Administrativa e o Direito à Informaçâo (Access to Information of the State: The Archives, Administrative Transparency and the Right to Information)

In this article the author, Eugénio Monteiro of the Historical Archives of Mozambique, explores access to information within a frame of rights and transparent governance. He brings a Mozambican focus to the topic, and places special emphasis on the role of archives. ESARBICA Journal Vol.21 2002: 17-23