International Covenant On Economic , Social And Cultural Rights Research Articles

The right to science or to Wissenschaft? Five lessons from the travaux préparatoires

This article identifies novel insights from a detailed analysis of the travaux préparatoires of the right to science provisions in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It makes five main contributions. First, it demonstrates the bidirectional influence between the UDHR and the earlier American Declaration of the Rights and Duties of Man in the formulation of the right to science, as opposed to unidirectional borrowing. Second, it traces the origins of Article 15 ICESCR to the UNESCO Constitution and argues that Article 15, specifically subclauses 2–4, were intended as implementation measures, though Article 15(3) was elevated into a separate and additional obligation due to its perceived importance for scientific and creative progress. Third, it clarifies an apparent conflict between drafting history and subsequent instruments concerning scientific purpose by distinguishing the development and use of science. Fourth, it suggests facilitating the search for truth as an unarticulated object and purpose of these provisions. Finally, it shows that many drafters acknowledged a broad scope of ‘science’ beyond the natural sciences. Overall, this article elucidates overlooked aspects of the travaux to inform contemporary debates on this important yet obscure right.

A right to health-based approach to dental caries: towards a comprehensive control strategy.

Health is a matter of human rights and dental caries is the most common non-communicable disease (NCD) globally. Consequently, dental caries is a matter of human rights and its control, particularly prevention, must be a priority. Although largely preventable, this is too often neglected, both in the literature of human rights- and health law, and in dental research. The right to oral health has recently been acknowledged by the World Health Organization (WHO), but it is insufficiently clear what this right entails. This article introduces a right to health-based narrative in the context of dental caries. The right to health is stipulated in human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC). States that are Parties to these treaties, which are virtually all States globally, are mandated to ensure the enjoyment of individuals' right to the highest attainable standard of health, including oral health. Dental caries is a matter of human rights. States have binding obligations to address dental caries: they require the regulation of the healthcare system, i.e. the traditional focus on operative care, but also put the regulation of other risk factors on an equal footing, such as the regulation of the living environment and access to fluoride. A right to health-based approach to dental caries thus offers a comprehensive approach to dental caries control, particularly prevention.

Unpacking International Commitments: Assessing the Implementation of ICCPR, ICESCR, and the Convention Against Torture in Pakistan's Legal Framework

 
 Since time immemorial, the discourse surrounding human rights has occupied a central position in societal discussions. In the earliest epochs, these rights were not systematically codified, with the process evolving over centuries. A significant watershed moment occurred post-World War II, marked by the establishment of the United Nations and the consequential adoption of the Universal Declaration of Human Rights. Notwithstanding Pakistan's ratification of the majority of international Human Rights covenants, a comprehensive integration into its domestic legal framework remains elusive. This research article delves into an analysis of three pivotal Human Rights agreements, namely the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention Against Torture. The study analyzes the extent of these treaties' assimilation within the domestic legal system, elucidating the complexities and impediments hindering complete incorporation. The ensuing discourse proffers substantive recommendations aimed at facilitating the seamless integration and efficacious implementation of these international accords, thereby fortifying the safeguarding of human rights on a national scale.

국제인권법상 문화생활 참여권에 대한 고찰

This study delves into the right to participate in cultural life as defined by international human rights law and explores its implications. While this right has often been overlooked in the realm of international human rights law, it cannot be ignored from a legal standpoint for states that are signatories to the International Covenants. As societies progress, the significance of cultural life gains more prominence, and the right of socioeconomically disadvantaged individuals to partake in cultural life may become a pressing concern. Furthermore, in the international community, discussions on the right to participate in cultural life frequently revolve around the rights of minorities and indigenous peoples, and South Korea is no exception to this discourse. Lastly, the complex relationship between human rights and culture must be addressed, especially the need to address traditional cultures that have discriminated against individuals with specific identities, such as women. Hence, it is imperative to scrutinize the right to participate in cultural life within the framework of international human rights law. Nonetheless, when delving into the origins of the right to participate in cultural life, understanding its meaning and characteristics can be challenging. The definition of the “right to participate in cultural life” outlined in Article 27(1) of the Universal Declaration of Human Rights (UDHR) and Article 15(1)(a) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) may not be entirely clear from these treaties. However, by examining other agreements, we can infer that this right encompasses the realms of humanities, arts, popular culture, and modern society. In recent years, the concept of culture has evolved to consider the rights of minorities and indigenous peoples, necessitating a reinterpretation. It's worth noting that the drafters of the UDHR and ICESCR did not originally consider the rights of minorities and indigenous peoples. Nevertheless, the General Comment on Article 15(1)(a) of the ICESCR indicates a departure from the concept of culture as envisioned in Article 27 of UDHR. This commentary highlights the incorporation of two distinct concepts of culture into the right to participate in cultural life: the narrow concept of culture in modern society and the anthropological concept of culture, both of which are analyzed accordingly.

Neo-liberalism, human capital theory and the right to education: Economic interpretation of the purpose of education

With the end of WW II, a new world order emerged that recognised the significance of human rights as part of the remedial measures to institute global peace. This is recognised in Articles 1(3), 13(1)(b) and 55(c) of the 1945 United Nations Charter. Thereafter, the human rights ideals recognised by the UN Charter were codified into the Universal Declaration of Human Rights (UDHR) 1948 (Fait, 2015: 26). Despite not having a binding force, the UDHR became a standard-setting instrument covering all generations of human rights including the right to education. Later, two distinct treaties – i.e., the International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 were adopted as a follow-up to the UDHR. Articles 13 and 14 of the ICESCR made more expansive provisions on the right to education than Article 26 of the UDHR. However, the adoption of policies driven by neoliberal ideals and associated neo-classical economic principles in the delivery of education has brought education under market forces, encapsulating it with an economic purpose. This makes education central to the realisation of the neoliberal ideology as schools focus on teaching technical skills and knowledge necessary for the achievement of the economic purposes of education. This paper argues that while the economic purpose of education which is in line with neoliberal and associated neo-classical economic principles is germane for states’ economic development, a holistic approach is consistent with the human rights purpose of education.

Reasserting the Right to Adequate Clothing in International Human Rights Law

Abstract Through examining the practice of the United Nation’s Committee on Economic, Social, and Cultural Rights, this article reasserts the ‘forgotten’ right to adequate clothing as a distinct right deriving from Article 11 (1) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). In doing so, this article traces and explains how the right to adequate clothing has ceased to feature in reporting and monitoring under the ICESCR. The right to adequate clothing must be reasserted for three reasons. Firstly, an accurate interpretation of the ICESCR requires its recognition as a distinct right. Secondly, it is the only human right that can effectively respond to the specific harms stemming from inadequate clothing. Thirdly, clothing is a prerequisite for the enjoyment of human rights generally. Consequently, the right must be reintegrated into the ICESCR’s reporting guidelines to allow effective monitoring and to engender the institutional development of this right.

Nigeria and the International Covenant on Economic, Social and Cultural Rights: Straightening the Crooked Path

As encapsulated in the Universal Declaration of Human Rights of 1948, economic, social, and cultural rights are indispensable components of the fundamental rights that the global community guarantees to all humankind, alongside civil and political rights. Specifically, the United Nations adopted the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1966 to expedite the fulfillment of ESCR while imploring Member States to adopt and domesticate the same to stimulate the realization of these rights at the national level. This study examined Nigeria concerning their effort toward fulfilling the obligation to the ICESCR, which she affirmed. Depending on data derived from secondary sources and analyzed using thematic and content analysis techniques, the study found that Nigeria maintains demonstrable support for the international community in promoting the universal realization of ESCR. Nigeria has ratified and domesticated the ICESCR at the global level and the African Charter on Human and Peoples’ Rights at the regional level and incorporated these rights into their extant 1999 National Constitution. Nevertheless, Nigeria’s path to fulfilling its obligation to the ICESCR is crooked as it faces some underlying problems that impede its effort, including the paradox in its constitution. The study recommends, in addition to other actions, a constitutional reform to repeal Section 6(6)(c) of the 1999 Constitution of Nigeria to categorize ESCR under ‘fundamental rights’ and ascribe them the status of ‘enforceable’ rights under the law to ameliorate these issues.

Mental Health and Psychosocial Support for Ukrainian Refugees in the Netherlands from Fragmentation to Integration

Introduction:More than 7.8 million people fled Ukraine since the invasion of Russia and are registered as refugees in Europe (as of November 1, 2022). Almost 89,000 of them are registered to the Netherlands (as of November 3, 2022). It is expected that this number will rise. Appropriate and accessible Mental Health and Psychosocial Support (MHPSS) is essential for conflict survivors to address psychological harm from traumatic events and distress both during the escape and after, while trying to adjust to an unfamiliar place. Receiving countries have the obligation to provide MHPSS as part of their international commitment to the right to health. This is recognized in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of Persons with Disabilities (CRPD). Nevertheless, the Netherlands is failing to honor this commitment with fragmented services that do not seem to fit support needs. The longer it takes to put a comprehensive approach in place, the greater the damage to the refugees will be. This interactive session aims to shed light on practical challenges and opportunities for the implementation of appropriate, accessible and integrated MHPSS. What is needed to go from a fragmented to an integrated approach?Method:Being active as advisors in the field of Disaster Health and MHPSS in the Netherlands, the presenters review their experienced challenges thereafter opportunities and good practices are explored together with the participants.Results:Experienced challenges include complexity, fragmented organization, lack of ownership and inadequate access to knowledge and information about support needs.Conclusion:More is needed to meet the commitment to the right of health and to provide adequate MHPSS to refugees in the Netherlands and beyond. International exchange and learning can help us to understand and overcome implementation challenges.

Traditional Medicine as Part of the Human Right to Health in the Democratic Republic of the Congo

Applicable law protecting the right to health in the Democratic Republic of the Congo (DRC) consists of ratified human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and Peoples’ Rights (African Charter), and domestic laws. However, none of these legal instruments explicitly mention traditional medicine (TM). Nevertheless, their provisions are broad enough to include TM. The Committee on Economic, Social, and Cultural Rights and the African Commission on Human and Peoples’ Rights have interpreted the right to health under the ICESCR and the African Charter to cover TM. Moreover, in implementing the right to health, the DRC has taken legislation, policies, and programs that regulate and protect TM. In addition to discouraging some bad practices associated with TM, regulation protects people from eventual violation of the right to health by Traditional Health Practitioners (THPs). Furthermore, the protection of medicinal natural resources contributes to the availability and accessibility of TM products. However, like in the colonial period, TM in the DRC continues to be marginalized compared to modern medicine. Therefore, several factors limit access to TM of good quality that is available and accessible. These include, among others, failure for public health facilities to provide TM, lack of provisions covering explicitly TM under the existing social security law, the absence of an adequate control mechanism, and the lack of appropriate criminal sanction regime.

Viktimološka analiza rizika od viktimizacije kod klimatskih promjena u Bosni i Hercegovini

The idea that every human being has the right to a clean and healthy environment has captivated the imagination of people worldwide. Is this the case with environmental human rights? The United Nations Charter (1945), the Universal Declaration of Human Rights (1948), and the two human rights covenants - The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (both were adopted in 1966 and entered into force in 1977) omit any reference to whether being human encompasses such a right. Socioeconomic and cultural rights include the rights to dignity, education, health, food, water, sick leave, family leave, and employment, while the right to a healthy environment presents a boundary between these and various other rights. In an attempt to address this issue, the authors first analyze the meaning of the right to environmental protection. They specifically scrutinize the outcomes of the European Climate Conference regarding the scientific contributions to climate change transformations on the European continent, held on May 15th and 16th, 2023, in Warsaw. Additionally, the paper presents insights into climate change and the victimization of citizens, along with the risks of victimization associated with these changes. Building on the discussion, special attention is directed towards the issue of the relationship between Bosnia and Herzegovina and the United Nations Convention on the Law of the Sea (UNCLOS). To achieve an adequate standardization and regulation level, urgent preventive measures are proposed to address victimization in the context of climate change in Bosnia and Herzegovina with the aim of ensuring the right of all citizens to live in a safe, clean, healthy, and sustainable environment.

Marjo Lindroth and Heidi Sinevaara-Niskanen, The Colonial Politics of Hope: Critical Junctures of Indigenous-State Relations (London: Routledge, 2022)

The main theme is “hope“. The authors trace the sources of this concept to the colonial era in which the only “hope” for Indigenous peoples to survive was integration into Western society. The empirical and conceptual analysis of hope follows three thematic paths: the constitutional recognition of indigenous rights, the ratification of ILO Convention 169, and the creation of self-governments such as the one established in Greenland in 2009. The decolonization process by the Nations Unite began in 1960, when several declarations were stating that “natural heritage and political determination belong to all individuals”. These rights were not to be influenced by diplomatic relations between states and were to be respected in all member states. As the book points out, not all states adopt the new provisions easily. Since the declarations of the General Assembly are not legally binding, in the 1970s the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into force. Even today, these conventions play a role of absolute importance in disputes involving cases of inequality, discrimination, and racism.

The Return of Fossils Removed Under Colonial Rule

Debates on the restitution of colonial loot usually focus on art, antiquities, religious artefacts, and similar objects. Many fossils of considerable scientific and cultural value were also removed under colonial rule, yet they rarely feature in these discussions despite being classified as cultural objects. This article seeks to shed light on the colonial removal of fossils and explore potential avenues for their return under public international law. Instead of focusing on the (il-)legality of colonial takings, we argue that the right to access culture has developed from the right to participate in cultural life in Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides, if not a solid legal basis, a valuable set of arguments for former colonies requesting the return of fossils looted from their countries/territories of origin. The case study of the negotiations on the return of the Broken Hill skull before the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (ICPRCP) highlights the potential of this mechanism of dispute resolution with respect to fossils.

Универсальный правозащитный механизм на страже сохранения или ревизии института семьи

The article attempts to comprehensively analyze the institution of family, which is enshrined in the Universal Declaration of Human Rights (UDHR) and in two International Covenants on Human Rights - the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which together with the UDHR form the International Bill of Human Rights. The article examines the views of relevant treaty bodies empowered to monitor the implementation of the International Covenants on Human Rights by States parties, represented by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights in relation to the institution of the family, expressed by them in their general comments and related concluding observations on the periodic reports of States parties to the International Covenants. The opinions of the European Court of Human Rights and other human rights treaty bodies in relation to the institution of the family are also presented in comparative order. The article emphasizes that the preservation of the approach that was laid down in the institution of family in the relevant International Covenants on Human Rights, as well as deviations from it, which the author qualifies as ultra vires powers vested in the relevant human rights treaty bodies.

The Paris Agreement: A Symbiosis for the Protection of Human Rights and Climate Change?+

The decision-makers, lawyers and legislators have a responsibility to know and understand the science, facts, global regulatory framework and uncertainties of climate change in order to better achieve the goals of the Nationally Determined Contributions (NDCs) under the 2015 Paris Agreement as well as the 2030 Sustainable Development Goals (SDGs), among others. They also have linkages and relevance for the implementation of the legal obligations under Article 6 (inherent right to life) of the 1966 International Covenant on Civil and Political Rights (ICCPR) and Articles 11 (adequate standard of living) and 12 (physical and mental health) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This study critically examines the complex interplay between different regimes regarding climate change adaptation and mitigation, sustainability and human rights so as to better respond to “climate emergency” underscored by the UN Secretary-General on 2 June 2022 at the Stockholm+50 Conference.

حقوق الملكية الفكرية (قراءة في أحكام الشريعة ومواثيق وإتفاقيات دولية وقوانين ومراسيم باكستان)

Islam recognizes the notion of personal rights of the individuals including the right of ownership, possession and property. Islam also identifies the individual’s rights to function individualistically. Therefore the efforts made for promoting intellectual rights can be considered a legitimate and recognized personal right. The notion of intellectual property is not unfamiliar to the Islamic regulation of property but it is an essential portion of it. Wide-ranging doctrines derived from the foundations of Islamic law and defined by Muslim jurists have directly protected it as a legal property. Intellectual property rights are indispensable to human creativity. Many laws have been enacted to protect intellectual property rights by creating awareness among the individuals about the intellectual property rights at national and international level. This research presents various viewpoints of Islamic scholars on intellectual property rights by highlighting the extent of these intellectual property rights. It also explores the endeavors being made at national and international level to raise awareness about various intellectual property rights including trademark, copyright and patent, which facilitate innovators to acquire acknowledgment or monetary advantages from their innovations. The basic aim of this research is to portrait a general idea of the endeavors made by numerous international organizations, countries and bodies including World Intellectual Property Organization (WIPO), The Universal Declaration of Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Paris Convention, Protection Industrial Property, Berne Convention for the Protection of Literary and Artistic Works and World Trade Organization (WTO) for protecting the intellectual property rights. This study also explores the efforts made by Pakistan to enact laws for intellectual property rights by issuing various ordinances including Patents Ordinance 2000, Trade Marks Ordinance, 2001, Copyright Ordinance 1962. The Intellectual Property Organization-IPO was also as an autonomous body in 2005 under the administrative control of the Cabinet Division for integrated and efficient intellectual property management in Pakistan. Results, recommendations are presented at the end.

How general human rights tools support the right to health: A review

<strong>Introduction:</strong> The right to health is the economic, social, and cultural right of the individual to have a universal minimum standard of health without any discrimination. With the concern on human rights, the right to health is a highly developing area. Many human rights tools can be identified as strategies for protecting the right to health. <strong>Objective:</strong> To understand how the general human rights tools support the right to health. <strong>Methodology:</strong> A desk review was conducted to identify and analyze the relevant human rights tools. Data were extracted and summarization techniques were used to compile information. <strong>Results and discussion:</strong> Identified human rights tools and strategies were conceptualized. Various treaties and declarations extending from the Universal Declaration of Human Rights to constitutional provisions were identified as relevant human rights tools to protect the right to health. Accountability is an important requirement for an effective mechanism. International Covenant on Economic, Social, and Cultural Rights (ICESCR) and Article 25(1) of the universal declaration were recognized as the main human rights interventions to protect the right to health. International Covenant on Civil and Political Rights (ICCPR) recognizes the right to health through various other rights such as the right to life and the right to equality. Indicators for the right to health reflect the various dimensions of the health status of a country. <strong>Conclusion:</strong> This article focuses to introduce the international human rights mechanism for the right to health concept. Different types of general human rights tools and their relationships to the right to health were also identified.

The The UN Standars on Adequate Housing for Civil Society Action

The United Nations (UN), through its softlaw bodies of the global human rights system, built a paradigm on adequate housing for 22 years. Centro Dom Helder Camara (CENDHEC), as a civil society organization, has been working for 32 years in favor of the right to the city in Recife, Pernambuco, Brazil. At that time, the UN outlined seven basic aspects of adequate housing combined with the principle of non-discrimination. CENDHEC was established from the construction of the new constitutional text of 1988 and the use of legal and administrative instruments for security of tenure. The problematization consists of questioning the contribution of the UN, during 22 years, from the work of the Committee of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to the Special Rapporteur on Adequate Housing for the work of the Dom Helder Center Camara, as a civil society organization active in the field of the right to the city. The general objective of the article is to explore the limits of the concept of adequate housing from the international and national system for the promotion and protection of human rights in Brazil. The specific objective, on the other hand, takes care of delimiting the axiological beacons of action by Cendhec, as an organization of organized civil society, open to international experience.

A Latin American view of the human rights approach to tobacco control.

Human rights law is a powerful legal tool to protect health, including tobacco control. The International Covenant on Economic, Social and Cultural Rights (IESCR) obliges States to produce results and is enforceable. Although a human rights approach would have many advantages for Latin American tobacco control, it has not been appropriately used for advocacy purposes yet. Human rights law is a powerful legal tool to protect health, including tobacco control and smoking cessation. Therefore, I appreciate this article by Meier et al. [1]. I will briefly comment on some additional aspects, both generally and as they relate to the current situation in Latin America. Are human rights enforceable? In theory, yes. Human rights are inherent to human beings and empower individuals (rights holders) to demand that States (duty holders) comply with the obligations of those rights. However, an “artificial” contrast has been raised about differences in enforceability between civil and political rights (e.g. the right to life, liberty, property, etc.) and economic, social and cultural rights (ESCR), related to living conditions and access to material and cultural goods (including the right to health). Civil and political rights confer an obligation of results and no one disputes they are enforceable. ESCR confer obligations of means or behaviour and can be viewed as enforceable only to the extent that the State has sufficient resources; they are, therefore, often regarded as “expectations” [2]. For most Latin American law, the fact that ESCR must be fulfilled according to the available resources does not imply they are not enforceable. The obligation to use “the maximum” of the “available resources,” together with the obligation of progressive satisfaction and the need to the results to the appropriate technical or political standards, would make ESCR enforceable. In addition, international law imposes a fundamental rule: pacta sunt servanda, which means that “contracts are to be fulfilled.” Traditionally, the human rights State obligations were classified into positive obligations (to carry out certain activities leading to compliance; in the case of civilians and politicians) and negative obligations (to refrain from actions that violated them; in the case of ESCR). Currently, the Van Hoof classification describes three types of human rights State obligations: to respect (refrain from interfering directly or indirectly), to protect (take measures to prevent third parties from interfering), and to comply (adopt all legislative, administrative, budgetary and other measures appropriate for its realization) [2]. Although ESCR are considered enforceable rights, they are threatened by the doctrine, linked to economic liberalism, which aims to make the State cheaper, often at the cost of social policies. Additionally, although a human rights approach would have many advantages for Latin American tobacco control, this approach has traditionally not been used by tobacco control advocates, but by rather by the tobacco industry (e.g. arguing freedom of expression violation) to attack tobacco control policies [3]. A human rights approach currently has limited relevance for tobacco control policies in Latin America. As Meier et al. point out, human rights law has a prominent role in political and regulatory discourses, and some countries have already established a connection between tobacco control and the fundamental right to health. Because most Latin American countries belong to the civil law tradition, controlling private actors through civil liability litigation is underdeveloped. However, Latin America also has a strong tradition of controlling State action through fundamental rights litigation. Likewise, the Inter-American Human Rights System provides a way to demand human rights State responsibility. Although the current relevance of a human rights approach in Latin America may be limited, it seems a promising approach that ought to be explored [2]. None. None.

Forced Sterilization

Photo by Renè Müller on Unsplash INTRODUCTION Forced sterilization of women around the globe is a human rights violation and bioethical concern. In the past, countries enacted laws to forcibly sterilize women deemed unfit to procreate. Although many of these laws have been retracted, the practice persists under the guise of public health. More recently, women living with HIV have been targets of nonconsensual sterilization. Consent is frequently obtained while under duress or threat or not obtained at all. Nonconsensual sterilization has been documented in Chile, the Dominican Republic, Mexico, Namibia, South Africa, and Venezuela.[1] In 2015, three women who were sterilized without consent sued the Supreme Court of Namibia, which did not find evidence that the doctors engaged in discrimination by performing or recommending the procedures due to the patient's HIV status.[2] l.     What is Forced and Coerced Sterilization? Forced sterilization is any sterilization that takes place without a patient’s informed consent. In healthcare settings, it occurs when women seeking sexual and reproductive health care are sterilized without their knowledge or the opportunity to provide informed consent. The practice is used as a means of permanent contraception. Surgery is the most common sterilization method. Women may unknowingly have a hysterectomy, the blocking and severing of fallopian tubes, or they may be administered a medication that causes the fallopian tubes to seal, thus preventing fertilization. Nonconsensual sterilization may result from misinformation, financial incentives, or intimidation tactics obliging women to approve of the procedure.[3] ll.     Namibia: A Case Study Namibia presents a crucial bioethical injustice despite its perceived legislative success in curbing forced sterilization. In 2008, the International Community of Women Living with HIV/AIDS (ICW) and the Namibian Women’s Health Network (NWHN) documented mass violations of sexual and reproductive health rights. The report recorded breaches of informed consent when testing for HIV, denial of information to women with HIV, and divulging or risking confidential patient information.[4] Between 2005 and 2007, three women were coerced into bilateral tubal ligation when seeking reproductive health care. In 2012, the women filed a suit against the Namibian Government for constitutional violations.[5] Their claims included infringements of their rights to dignity, liberty, and to make decisions about starting a family. In addition, the women claimed the procedures were discriminatory due to the women’s HIV status. In 2015, the Namibian High Court ruled in the women’s favor and rendered the sterilizations unlawful. However, the Court failed to conclude that the acts were discriminatory. [6] lll.     Autonomy In the traditional Western view of bioethics, autonomy is defined as self-rule, freedom from the control and limitations of others. Autonomy requires informed consent and the absence of coercion. If a person’s choice is based on manipulation, coercion, or compulsion, consent is not truly voluntary, and if it is based on misinformation, it is not informed, violating autonomy.[7] Eight hours into labor, a nurse informed one of the plaintiffs that she must undergo a hysterectomy. The plaintiff was presented with official documentation to consent to the procedure, which was not explained to her. The documentation referred only to the sterilization procedure using an abbreviation. She was dependent on the clinician’s assistance in the birthing procedure. She was not aware of the nature of the procedure because she did not understand the options and consequences in the consent document. The healthcare workers made no effort to inform the woman of her right to abstain from the procedure, which she did not understand was a sterilization procedure. She did not learn that she was sterile until returning to the clinic to obtain retroviral medication for her child.[8] The consent was neither voluntary nor informed, undermining autonomy. lV.     Beneficence The principle of beneficence consists of the moral obligation to do good and has been described as requiring one to act for another’s benefit or to further a patient’s interests. What constitutes the patient’s good is related to both the patient’s view of her good and what allows her to pursue her own conceptualization of “good.” Beneficence from a physician’s viewpoint might also concern what the physician thinks is good or best for the patient. Studies asking women, “have there been any positive or good changes in your life ever since you found out that you were sterilized,” report no positive outcomes.[9] By ignoring the interests of patients, beneficence is abandoned. By performing forced sterilizations, healthcare workers deprive women of the right to bear children in the future. This directly violates the notion of prioritizing a patient’s interests. In Namibia, patriarchal cultural values about reproduction, marriage, and child-rearing instill expectations on women to bear and rear children.[10] Forcibly sterilizing women ignores heightened cultural pressures and the psychosocial outcomes for women who cannot become pregnant. Sterilization risks discrimination against women with HIV. In addition, a woman who is forcibly sterilized may suffer abuse from a spouse who was excluded from the decision, leading to compounding adverse effects on physical and psychological well-being. Beneficence also calls for ending discrimination. Coerced sterilization is partly based on mistaken beliefs about vertical HIV transmission.[11] Although proper medication can prevent mother-to-child transmission, clinicians who are ill-informed about transmission resort to sterilization. Women subjected to forced sterilization suffer immense physical harm at clinicians' hands. Consequential physical health problems include heavy menstrual bleeding, severe abdominal pain, and lower limb weakness. These physical health problems increase financial difficulties and the need for health services, placing additional financial, physical, and emotional stress on patients. Clinicians’ disregard for the socio-cultural consequences is non-beneficent and a bioethical lapse. The sterilizations come under the backdrop of pervasive victimization of women, discrimination, and gender-based violence, made worse in the aftermath of sterilization.[12]  Among women forcibly sterilized in Latin American countries, pregnant women with HIV are six times more likely to be forcibly sterilized than pregnant women with HIV whose diagnosis was unknown to themselves and their physicians.[13] Equivalent findings have been documented in Southern Africa.[14] By perpetuating HIV-discriminatory beliefs that deem women unworthy of reproduction, clinicians subject patients to harmful discrimination and freely discount the principle of justice. V.     Through a Human Rights Lens Nonconsensual sterilization is recognized as an “act of torture, and cruel, inhumane, and degrading treatment” by the United Nations Human Rights Committee. Torture is defined as intentionally inflicted suffering on a person for an improper purpose or if that purpose is based on discrimination. [15] The United Nations has condemned forced sterilization as a violation of the rights to health, bodily integrity, freedom from violence, freedom from torture, freedom from discrimination, and to decide the number and spacing of their children. The right to health is guaranteed under the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The right to information is guaranteed under The International Covenant on Civil and Political Rights (ICCPR).[16] There is also a long recognized right to informed consent under which healthcare practitioners provide the information necessary for people to make an informed choice. Practitioners must disclose the risks and benefits of a procedure. In the actions leading to the 2015 lawsuit in Namibia, the women were unaware that they had been made sterile until they returned to a healthcare facility. They had not been given a choice. The doctors told them they ‘must’ undergo the procedure. The clinicians failed to provide clear and comprehensible information and did not confirm that the patients understood the consequences of the process. Using the patient care framework (HRPC), healthcare facilities and governments can reduce stigma and discrimination. HRPC acknowledges the systematic nature of forced and coerced sterilization and calls for seeking out and trying to eliminate involuntary and coerced sterilization. To comply with the HRPC, countries must investigate and abolish all instances of coerced sterilization in an effective and just manner. In the courts, better human rights argumentation and the ability to challenge legal deficiencies would improve plaintiffs’ ability to win cases.  CONCLUSION The bioethics community should take action to end coerced sterilizations as they violate the four principles of bioethics set forth by Beauchamp and Childress. In Namibia, the case of the three plaintiffs demonstrates the need for more bioethical attention, as the disregard for autonomy, beneficence, nonmaleficence, and justice were clear. Employing a human rights framework emphasizes the structural origins of the practice and calls for governments to seek out and end coerced sterilization. If coerced sterilization does occur, courts that prosecute it can be a deterrent and can work toward righting the wrong through the justice system. - [1] Open Society Foundations, “Against Her Will: Forced and Coerced Sterilization of Women Worldwide.”, (2011): 2-10 (accessed August). [2] Nyasha Chingore-Munazvo, Katherine Furman, Annabel Raw and Mariette Slabbert, “Chronicles of communication and power: informed consent to sterilisation in the Namibian Supreme Court’s LM judgment of 2015,” Theoretical Med Bioethics 38 (April 2017): 145-162, https://doi.org/10.1007/s11017-017-9405-0 [3] Mindy Jane Roseman, Aziza Ahmed, and Jennifer Gatsi-Mallet, “At the Hospital There Are No Human Rights’: Reproductive and Sexual Rights Violations of Women Living with HIV in Namibia,” no. 128-130 (July 2012), http://dx.doi.org/10.2139/ssrn.2220800. [4] Roseman, Ahmed, and Gatsi-Mallet, “At the Hospital,” 4. [5] LM and Others v. Government of the Republic of Namibia (I 1603/2008, I 3518/2008, I 3007/2008) at 4. The judgment notes the plaintiffs’ claims that the unlawful conduct violated the plaintiff’s rights guaranteed under the Constitution of the Republic of Namibia, in particular, her right to life (Article 7) , her right to human dignity (Article 8), and her right to found a family (Article 14). (2012) NAHC 211, https://namiblii.org/na/judgment/high-court/2012/211. [6] Chingore-Munazvo, Furman, Raw and Slabbert, “Chronicles of communication and power,” 146. [7] Jukka Varelius, “The value of autonomy in medical ethics,” Med, Health Care Philos 9 (October 2006): 377-388, https://doi.org/10.1007/s11019-006-9000-z. [8] Chingore-Munazvo, Furman, Raw and Slabbert, “Chronicles of communication and power,” 142-147. [9] Kudzai Bakare &amp; Shelene Gentz, “Experiences of forced sterilisation and coercion to sterilise among women living with HIV (WLHIV) in Namibia: an analysis of the psychological and socio-cultural effects,” Sexual and Reproductive Health Matters, 28 no.1, https://doi.org/10.1080/26410397.2020.1758439. [10] Bakare &amp; Gentz, “Experiences of forced sterilization.” [11] Open Society Foundations, “Against Her Will.” [12] Tamil Kendall and Claire Albert, “Experiences of coercion to sterilize and forced sterilization among women living with HIV in Latin America,” Wiley Online Library 18, no. 1 (March 2015), https://doi.org/10.7448/IAS.18.1.19462. [13] Kendall and Albert, “Experiences of coercion.” [14] Chingore-Munazvo, Furman, Raw and Slabbert, “Chronicles of communication and power.” [15] Open Society Foundations, “Against Her Will.” [16] Priti Patel, “Forced sterilization of women as discrimination,” Public Health Reviews 38, no. 15 (July 2017), https://doi.org/10.1186/s40985-017-0060-9.

UPAYA PELESTARIAN TARI TRADISIONAL BANGSA INDONESIA DARI SEGI HUKUM YANG BERSUMBER DARI HUKUM INTERNSIONAL

The purpose of this article is to (1) inform the extent of legal protection efforts in preserving traditional dances, (2) and solutions that will be carried out in resolving international conflicts that occur due to cases of copyright claims for traditional dances which are the original cultural heritage of Indonesia by other countries. In making this article the type of research used is normative legal research. The approaches used in assisting the writing of this article are (1) the case approach (2) the analytical approach (3) the statute approach (4) and the conceptual approach. As well as in making this article using primary, secondary, and tertiary legal source materials. The results that can be concluded from the making of this article are (1) the National Regulation on the copyright of a dance is contained in Article 38 of Law no. 28 of 2014. In addition, from an international perspective, soft law is a form of law that has the power to bind it voluntarily, for example, the Universal Declaration of Human Rights (UDHR) 1948 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 and United Nations Declaration on the Rights of Indigenous Peoples 2007. And Hard Law which has similarities with soft law with both having binding power and also having legal sanctions if violated, for example Convention for the safeguarding of the intangible cultural heritage 2003. (2) Efforts to resolve conflicts legally can be resolved by litigation or non-litigation with the following explanation: Litigation is a form of solving problems involving the law through a court process, both in the form of criminal and civil cases. Which can be achieved by a juridical path, ” The method uses the Pacific Settlement of Disputes, with this method providing accountability for each country in tackling the emergence of disputes, which can disrupt peace and regional harmony, and Non-Litigation is a process of resolving legal problems outside the court, which generally refers to civil cases only. because it tends to be closed. The settlement can be done by: Mediation, and Negotiation.