Law Rights Research Articles

Between a ‘flexible’ and ‘rigid’ interpretation of the list of prohibited grounds of discrimination under article 21(3) of the constitution of Uganda: Uganda Law Society and 12 others v Attorney General [2024] UGCC 2 (13 February 2024)

Article 21 of the Constitution of Uganda (1995) provides for the right to freedom from discrimination. Article 21(3) provides that for the purposes of Article 21, discrimination ‘means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.’ Article 45 of the Constitution provides that ‘[t]he rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.’ In Uganda Law Society and 12 others v Attorney General (13 February 2024), the Constitutional Court invoked Article 45 and held that the list of prohibited grounds under Article 21(3) is not exhaustive. In this article, the author relies on the drafting history of Article 21(3), the jurisprudence of the Supreme Court on Article 21(3) and the literal interpretation of Article 21(3) to argue that the list of prohibited grounds in Article 21(3) is exhaustive and that the Constitutional Court erred when it held to the contrary. The author argues further that Article 45 should not be relied on to read rights into the Constitution. It should be applicable to statutory or common law rights.

The issue of human rights protection in international and Vietnamese criminal law

Human rights, regarded as fundamental and inalienable entitlements, are delineated and safeguarded through a combination of international legal frameworks and national laws. In this article, we conduct an in-depth analysis of the mechanisms for preserving human rights within both the international legal context and the specific framework of Vietnamese criminal law. We also put forth a set of recommendations designed to augment the effectiveness of human rights protection. In practice, the preservation and realization of human rights can be a complex challenge, and there are instances where these rights may be transgressed within the course of judicial proceedings. To tackle this problem, it is imperative that the provisions pertaining to human rights in both international and Vietnamese criminal law are given the requisite attention and adherence. Moreover, to ensure the comprehensive and effective implementation of human rights protection, it is imperative to establish a clear and robust legal framework. Striking the delicate balance between justice and human rights protection remains an ongoing endeavor, demanding continuous vigilance and adaptability in our legal systems. Ultimately, the harmonious coexistence of legal processes and human rights preservation is essential to fostering a just and equitable society.

Indigeneity at the 1948 Bogotá Conference

Abstract The article examines the history and legacy of the Bogotá diplomatic conference of 1948 in relation to Indigenous peoples. Indigenous voices were entirely absent from the Bogotá conference itself, and delegates relied instead on certain assumptions and narratives largely drawn from the Indigenismo movement in the Americas at the time. In considering Indigenous peoples as part of a broader social agenda, delegates confronted the legacies of colonialism and the ongoing exploitation and resistance of Indigenous peoples, invoking threads that we today might label a racial capitalism critique of international law. Their efforts, however salutary, culminated in an instrument, the Inter-American Charter of Social Guarantees, that was never ultimately adopted. Nevertheless, the debates at Bogotá are illuminating of the subsequent trajectory of Indigenous peoples’ rights in international law, and the alternative possibilities that can still be recovered to live up to the Bogotá conference delegates’ aspirations of Indigenous emancipation.

Common constitutional traditions: A story of genesis and normative transformations

This paper aims to inform our understanding of the past, present and future doctrinal nature of constitutional traditions common to the Member States (CCTs) in EU law by forwarding a novel historical narrative on their development. It tells not only a story of how CCTs came to be and what their function was or is today, but it also tells a story of how CCTs have transformed in the jurisprudence of the CJEU through time, what mechanisms affected that transformation, and how those mechanisms operated. It argues that, at first, CCTs had served different functions, the most important of which was serving as a source of normativity of fundamental rights in Community law. With time, this function dissipated, and the Court failed to sufficiently reinvent the purpose of CCTs. With the incorporation of the Charter, CCTs have undergone what the paper calls a process of ‘charterization’, through which they ceased being a source of normativity of the rights that have originated from them in the past. The Charter became the exclusive normative reference and CCTs of today and tomorrow are rhetorical devices at worst, and optional interpretative aids for the interpretation of the Charter at best.

PERAN HUKUM ISLAM DALAM HARMONISASI HAK DAN KEWAJIBAN ASASI MANUSIA DALAM PERSPEKTIF PANCASILA

In principle, Human Rights (HAM) are a basic right that is inherent in every human being because these rights are not a gift from a person, organization or state but are an invaluable gift from Allah SWT, but are priceless from Allah SWT. The concept of harmonization of Islamic law in realizing the implementation of human rights and obligations from a Pancasila perspective can bring good benefits to Indonesian society amidst the sensitivity of the problems occurring in Indonesia. This research examines the concept of human rights from Western and Islamic views and the role of Islamic law in realizing harmonization of human rights and obligations from the Pancasila perspective. This writing uses a type of normative research which is carried out by searching the literature which is then supported by additional data to strengthen this research. Using this normative research method will also help answer the concept of human rights according to Islamic law and the role of Islamic law in realizing harmonization of human rights and obligations from the Pancasila perspective. Results: It is important to remember that Islamic law and human rights cannot be separated absolutely. In Pancasila Law, these two concepts complement each other and must not conflict with each other. This is also in line with Islamic teachings which emphasize the importance of justice and balance in various aspects of life. This principle is in accordance with the teachings of the Islamic religion which emphasizes the importance of justice and equality in society. So, Islamic Law and Human Rights in Pancasila Law have the same goal, namely creating a just and equitable society. The conclusion of this writing is that the relationship between Islamic law and human rights in Pancasila Law is a complementary relationship and cannot be separated. Both have an important role in creating an Indonesian society based on Pancasila, so we must understand and appreciate these two concepts in order to live in harmony and balance in accordance with the nation's noble values.

The Horizontal Effect: Conceptualisation and Application of Constitutional Rights in Private Law

Private law has traditionally followed a separate mindset of rights, which is not necessarily related to the constitution. With the rise of constitutionalism in the world, thinking about constitutionalism and fundamental rights has spilt over into private law. The constitutionalisation of private law (or the horizontal effect of constitutional rights on relations between private actors) is one of the important topics that attract scholarly attention around the world.
 It can be seen that the modern history of the horizontal effect of constitutional rights has more than 60 years of development. However, in Vietnam, the topic of the effect of constitutional rights in private law has just been raised recently among legal scholars. This article serves as a development of the emerging discussion on the horizontal effect in Vietnam by providing a general conceptualisation and a brief history of the horizontal effect of constitutional rights in the world. The article also proposes the identification of horizontal effect paradigms in countries/jurisdictions and suggests implications of the horizontal effect for Vietnam.

Intellectual property rights in international and Russian investment law

The investment activity is diverse and can be carried out with the use of intellectual property rights in accordance with the current international and Russian investment law. The article aims to identify the specifics of the application of intellectual property rights as investments and the implementation of intellectual investments, i.e. investments endowed into intellectual property rights. The objectives of the study are to consider the categories of an investment and object of investment activity, intellectual property, exclusive and other intellectual rights, as well as to analyze and determine the features of legal regulation of the activity in question at the international and national levels in the Russian Federation. Based on the results of the systematic analysis with the use of formal legal, comparative and other research methods, it is concluded that investments as a property in a broad sense may include both exclusive and other non-personal intellectual property rights to the results of intellectual activity and equated means of individualization of goods, works, services and enterprises. At the same time, they exclude intellectual property itself as a set of various types of intangible products, moral and other personal non-proprietary intellectual rights by virtue of their inalienable and non-transferable character. It is argued to be the same with respect to the object of investment activity, i.e. the property which the investment is endowed in and is capable to bring income to the investor in the future. Investments into such intellectual property rights can be called as intellectual investments.The legal regulation of investment activity with the use of intellectual property rights has a dual character (in the sense that it is carried out by different investment legislative acts with the similar subject of their regulation) and depends on the type of a particular object used. If intellectual property rights are invested in fixed capital, then they are to be recognized as capital investments and are governed by the Federal Law of February 25,1999 No. 39-FZ “On Investment Activity in the Russian Federation Carried out in the Form of Capital Investments”. If intellectual property rights are used as the object of investment activity, i.e. where investments are endowed in, such intellectual investments are subject to the regulation by the Law of the RSFSR of June 26, 1991 No. 1488-1 “On Investment Activity in the RSFSR”.

REALIZATION OF THE RIGHT TO ENSURE A HIGH LEVEL OF CONSUMER PROTECTION IN THE EUROPEAN UNION

The subject of the article is the realization of the right to ensure a high level of consumer protection in the European Union. The basis for constructing this law is Art. 38 of the Charter of Fundamental Rights of the European Union, the provisions of the Treaty on the Functioning of the European Union and EU directives defining the subject of consumer law. The article discusses the normative basis for the protection of consumer rights in European Union law. Selected standards of consumer rights protection in the case law of the Court of Justice of the European Union were discussed, too. The article also discusses the role of European Union consumer law in realization of the right to consumer protection in the Republic of Poland. According to the author Art. 76 of the Constitution of the Republic of Poland does not provide grounds for constructing a subjective right to ensure a high level of consumer protection. Therefore, the provisions of European Union law and the case law of the Court of Justice of the European Union are of key importance.

Human rights in international law, state responsibilities and accountability mechanisms: a case study of Iran

ABSTRACT This research presents a critical theoretical and practical re-examination of the link between human rights' issues and politics at national and international levels. The study of human rights is an inherently multidisciplinary enterprise. The paper provides an insight into the relations between diplomacy and human rights and discusses how the latter are exploited for political and commercial aims. This study focuses on the case and constitution of the Islamic Republic of Iran (IRI), and the problem of hostage taking. An internationally-oriented study and based on theoretical arguments and an empirical research approach-notably by using several real cases of ordinary individuals of foreign and dual nationalities who became hostages and the subject of political games and financial conflicts between Iran and the Western countries-the paper highlights the issue of hostage taking of individuals by a state as a political policy and prisoner swaps involving financial and commercial deals. The paper provides evidence of the substantial suffering of the hostages and their families. The paper makes an academic contribution to the literature-the unlawful act of hostage taking involving a state has rarely been discussed -and addresses the legal vacuum in international law and human rights conventions regarding the topic.

Challenging the existing order of knowledge sharing governance with digital sequence information on genetic resources

Abstract The Conference of the Parties to the Convention on Biological Diversity (CBD) have begun work on establishing a distinct multilateral mechanism to access and share the benefits (ABS) from digital sequence information on genetic resources (DSI), with the expectation of new monetary benefits. Regulating DSI for benefit sharing is problematic because efficiently and effectively regulating information requires defining DSI and identifying a suitable material proxy for the information because it is itself intangible (probably a levy or tax to access or use a database of information). More problematic is finding a compromise to the competing information governance frameworks: a dominant international intellectual property order that favours the free exchange of resources and information (generally favoured by the technology rich North); the taking of nature by States and re-ordering of biological resources to deliver benefits (generally favoured by the technology poor South); and, the claims of Indigenous Peoples according to their emerging rights in international law.

Legal Protection for Children Against the Threat of Addictive Cigarette Substances

Purpose: This research aims to find legal protection for children under the age of 18 from the threat of dangerous addictive substances contained in cigarette products. Methode: The type of research is normative-juridical. Result: The research results show that legal protection for children under the age of 18 from the threat of dangerous addictive substances contained in cigarette products from the perspective of child protection law and the Child Rights Covenant is in accordance with the basic principles of children's rights in the Child Protection Law and the Covenant Children's Rights, namely; the principle of non-discrimination, the principle of the best interests of children, the principle of child survival and development, and the principle of respect for children's opinions . The government should immediately ratify the Framework Convention on Tobacco Control (FCTC) or the Tobacco Control Framework Convention to strengthen regulations for protecting children from the dangers of smoking which threaten their health and growth and development. Conclusion: The essence of legal protection for children under the age of 18 from the threat of dangerous addictive substances contained in cigarette products from the perspective of child protection law and the Child Rights Covenant is in accordance with the basic principles of children's rights in the Child Protection Law and the Child Rights Covenant, namely; the principle of non-discrimination, the principle of the best interests of children, the principle of child survival and development, and the principle of respect for children's opinions

Juridical Analysis of Rejection of Cancellation of the Deed of Sharing Collective Rights Based on Ruling Number:803K/AG/2017

The aim of this research is to analyze concept and regulation of sharing of joint rights in positive law and to analyze the judge's considerations in refusing to cancel the deed of sharing of joint rights based on Decision Number:803k/Aug/2017. This type of research is normative research. The problem is how the concept and regulation of the distribution of joint rights in positive law and how the judge considers the rejection of the cancellation of the deed of distribution of joint rights based on Decision Number:803k/Aug/2017. the results of this research are PemSharing of joint rights is a legal action carried out by holders of joint rights to land so that it becomes the right of each of the joint rights based on the Deed of Sharing of Joint Rights. Arrangements for the distribution of joint rights are contained in various regulations, namely Porder Government Regulation Number 24 of 1997 concerning Land Registration Article 31 paragraphs 4 and 5, and Article 51 paragraph 1, Regulation of the Minister of State for Agrarian Affairs/Head of the National Land Agency Number 3 of 1997 concerning Provisions for Implementing Government Regulation Number 24 of 1997 concerning Land Registration. Article 94 paragraph 2, article 95, article 96, article 105 article 111 paragraph 4, article 136 paragraphs 1 and 2, and Explanation PRegulation of the Government of the Republic of Indonesia Number 18 of 2021 concerning Management Rights, Land Rights, Flats and Land Registration in Article 67 paragraph 1. and dIt can be seen from the judge's various considerations that the reason for filing this cassation is actually the cancellation of the deed of sharing of joint rights made by the defendants legally in the PPAT and in accordance with existing provisions. The other reasons in this cassation cannot be justified because they are based on reality and no errors were found so they cannot be considered in this cassation decision in accordance with the provisions in Law Number 14 of 1985 concerning the Supreme Court Article 30.

The Category “Objects of Civil Law Rights” in the Pre-Revolutionary Doctrine

The legal category “objects of civil law rights”, its essence, content and systematization of its elements still remain one of the controversial issues of scientific doctrine, which has not received its resolution at the present time. Despite the use of this term in the world scientific literature for about two hundred years, the science of civil law has not come close to solving many controversial issues, in particular, about the relationship between objects of civil law and objects of civil legal relations, about understanding the category of objects of civil rights, which is mainly opposed to subjects of legal relations, etc. This article presents the doctrinal positions of pre-revolutionary scientists in relation to the category under consideration, which are based on Roman sources.

Gendering Public and Private International Law: Transversal Legal Histories of the State, Market, and the Family through Women's Private Property Rights

This essay takes up Karen Knop's challenge to reconstruct the oft-made distinction between private and public law by engaging private international law (PrIL) as a “lost side of international law.”1 To do so we interrogate the changing fortunes (literally) of women's private property rights in the long nineteenth century—a period characterized by the divestment and reinstatement of gendered rights in national law—focusing on the Nordics, Europe more broadly, and the Colonial world. Following Knop and other feminist legal scholars, and by engaging with questions of what Mariana Valverde calls “scale,”2 we bring women's property rights in conversation with international law. In doing so, we point to sites of engagement where the politico-economic structures of international law are lived, negotiated, reconfigured, and made real.3 We use scale to frame and inform our analysis bringing attention to how the “small” (micro) economics and politics of everyday life, women's labor, and gendered legal concerns, underpin and are an intrinsic part of the “large-scale” structures of international law. “All scales shifts,” Mariana Valverde notes, meaning that such “processes . . . br[ing] certain phenomena into focus that had previously been blurred or pushed to the background.”4 Recovering matters of women's history and everyday life, which, as Knop has argued are often “hiding in plain sight,” with a focus on women's property rights, brings to the fore the critical relationship between family/household, market, and the state, and the fundamental role international law has played in implementing a specific economic vision through the organization of gendered power relations.

Prisoner's Rights in Somalia Law and International Law: Comparative Analysis

Prisoner's Rights in Somalia Law and International Law: Comparative Analysis

Settling the Approach to Section 5 of the Bill of Rights in Administrative Law: Justification, Restraint and Variability

Settling the Approach to Section 5 of the Bill of Rights in Administrative Law: Justification, Restraint and Variability

Protection Mechanism of Constitutional Property Rights: Content in Kazakhstani Criminal Proceedings

The article deals with questions concerning the protection mechanism of constitutional property rights in the criminal law of the Republic of Kazakhstan. Analysis is provided on the ways to increase the effectiveness of this mechanism. The ways to realise the victim’s rights on compensation for violated property rights as a result of unlawful acts is also reviewed.

Legal Protection of Small and Medium Industry Products Through Trademark from an Islamic Law Perspective

Brand regulations in Law Number 20 of 2016 concerning Marks and Geographical Indications emphasize that a brand is a sign that can be displayed graphically in the form of an image, logo, name, word, letter, number, color arrangement, in the form of 2 (two) dimensions and/or 3 (three) dimensions, sound, hologram, or a combination of 2 (two) or more of these elements to differentiate goods and/or services produced by individuals or legal entities in goods and/or services trading activities. Brands are important in the business world of trading goods and services. Brand as a means to introduce a product to consumers. In reality, many products can deceive and confuse consumers in choosing products. Islam views brands as assets whose ownership must be protected. This article will analyze the legal protection of small and medium industrial products through trademark registration from the perspective of Islamic law. This research is a normative legal research study by conducting library research and using a statutory approach to the primary, secondary and tertiary legal materials used. The research results found that trademark rights in Islamic law are assets whose ownership rights must be protected from things that are detrimental to the brand owner. In Islamic law, plagiarizing, counterfeiting and duplicating a product brand, including small and medium industrial brands, without the owner's permission are prohibited acts. So, the protection of trademark rights in Islamic law is based on the principle of mu'amalah, namely eliminating injustice, avoiding danger, and realizing the public benefit.

STRENGTHENING SHARIA ELEMENTS; SYUF’AH OR LANGGEH RIGHTS IN LAND BUYING AND SELLING TRANSACTIONS IN ACEH

This article describes the strengthening of sharia elements (Syuf'ah) in buying and selling land in Aceh. The implementation of Islamic law in Aceh is not only in the field of worship, it also includes the field of muamalah, namely buying and selling land. In Acehnese customary law, syuf'ah rights are known as langgeh rights. In the decision of the Supreme Court of the Republic of Indonesia dated March 31 1977 No. 298 K/Sip./1973 explains that langgeh rights are rights in customary law that give priority over other people to buy land, which is given to relatives, Segampong/village communities and neighboring land owners. If the sale and purchase of land is not carried out based on priority rights, the aggrieved party can sue for the cancellation of the validity of the sale and purchase to the Gampong Court. This article uses normative research methods, in the form of secondary data analyzed using qualitative methods. The results of research that has been carried out by several previous researchers, there is a dispute in the sale and purchase of land in Aceh which does not apply Syuf'ah rights or langgeh rights. Strengthening the Syari'ah elements of Syuf'ah or langgeh rights in the sale and purchase of land in Aceh is regulated in Qanun Muamalah and is applied in land buying and selling transactions in Aceh. The importance of strengthening the elements of syari'ah syuf'ah or langgeh rights is to prevent disputes or cancellation of land sales and purchases in Acehnese society.

Prevention of Marriage: Legal Parameters and Guardianship Rights in Islamic Law

Abstract Pencegahan Perkawinan Pencegahan perkawinan merupakan upaya untuk membatalkan perkawinan sebelum pelaksanaannya. Pencegahan perkawinan dapat terjadi jika calon suami atau calon isteri yang hendak menikah tidak memenuhi syarat-syarat yang diatur oleh hukum Islam sesuai dengan Pasal 13 Undang-undang (UU) Nomor 1 tahun 1974. Dalam literatur fikih, pencegahan perkawinan sering disebut sebagai I’tiradlun, yang merujuk pada intervensi, penolakan, atau tindakan pencegahan. Terutama, hal ini berkaitan dengan kafa'ah dan mahar. Anak perempuan dan wali memiliki hak yang setara terkait dengan kafa'ah dan mahar. Beberapa ulama, seperti dalam kalangan Hanafiyah dan Syi'ah, memperbolehkan perempuan dewasa untuk mengawinkan diri mereka sendiri, tetapi pencegahan perkawinan masih dapat diajukan oleh wali yang berhak berdasarkan kafa'ah. Jika terjadi ketidaksepakatan antara wali dan anak terkait kafa'ah dan mahar, keduanya memiliki hak untuk melakukan pencegahan perkawinan. Kata Kunci: Perkawinan, Analisis, Pencegahan, Hukum Abstract Prevention of marriage Prevention of marriage is an attempt to cancel a marriage before its implementation. Prevention of marriage can occur if the prospective husband or prospective wife who wants to get married does not fulfill the conditions regulated by Islamic law in accordance with Article 13 of Law (UU) Number 1 of 1974. In fiqh literature, prevention of marriage is often referred to as I'tiradlun, which refers to intervention, refusal, or preventive action. In particular, this relates to kafa''ah and dowry. Girls and guardians have equal rights with regard to kafa''ah and dowry. Some scholars, such as the Hanafis and Shi'a, allow adult women to marry themselves, but prevention of marriage can still be requested by the rightful guardian based on kafa''ah. If there is disagreement between the guardian and the child regarding kafa''ah and dowry, both have the right to prevent the marriage.