Ofhuman Rights Research Articles

Current problems regarding abortion, prenatal genetic testing and managing pregnancy

Current ethical and legal issues with regard to abortion, prenatal genetic testing and managing pregnancy are discussed in this paper. These problems are considered from the legal theory point of view as well as from the standpoint of the Serbian Law, the European Convention for the Protection of Human Rights and Fundamental Freedoms, European Court of Human Rights, legal regulations of several EU countries, the USA, Japan, and their judicial practice. First, the pregnancy termination standards that exist in Serbia are introduced. Then the following issues are explained separately: the pro life and pro choice approaches to abortion; abortion according to the legal approach as a way of survival; the moral and legal status of the fetus; prenatal genetic testing, and finally matters regarding managing pregnancy today. Moral and legal principals of autonomy, namely freedom of choice of the individual, privacy and self-determination give women the right to terminate unwanted pregnancies. In addition, the basic question is whether the right of the woman to abortion clashes with the rights of others. Firstly, with the right of the "fetus to life". Secondly, with the right of the state to intervene in the interest of protecting "the life of the fetus". Third, with the rights of the woman?s partner. The fetus has the moral right to life, but less in relation to the same right of the woman as well as in relation to her right to control her life and her physical and moral integrity. On the other hand, the value of the life of the fetus increases morally and legally with the maturity of gestation; from the third trimester, the interest of the state prevails in the protection of the "life of the fetus" except when the life or health of the pregnant woman are at risk. As regards the rights of the woman?s partner, namely the husband?s opinion, there is no legal significance. The law does not request his participation in the decision on abortion because the decision is exclusively brought by the pregnant woman. Critics of prenatal genetic testing claim that the woman?s autonomous choice is seriously prejudiced, as the women are pressured first with genetic testing and then with abortion, if the test is positive. However, there are views that many parents are left to bring their decisions in a vacuum because the physicians do not discuss all possible available options with them out of fear that they will be perceived as orders. Genetic counseling has an aim to facilitate informed reproductive decisions. Rigid application of policies on non-directive genetic counseling make pregnant women and families unaware of the nature and consequences of the genetic state which could affect the future child. If the real goal is an informed choice then it is the obligation of the physician-specialist to inform the parents with the facts and familiarize them with the true state. Managing pregnancies today medicalizes and pathologizes all pregnancies, and not only the risky ones. Since these techniques are becoming a routine part of medicalized pregnancy managing, pregnant women find it difficult to resist undertaking such technologies or to refuse them. Thus the question on how much these technologies offer sensible choices is imposed. Generally speaking, it is stated that women are becoming observers rather than active participants in giving birth to a new life. Attempts of legal control over a pregnant woman for the protection of "the life of the fetus" violate the woman?s human rights in democratic societies.

NATO aggression against FRY: “A war on the border between law and morality”

The paper focuses on the ethical aspects of NATO aggression (or so-called ?humanitarian intervention?), exerted against the FRY, actually Serbia, in the period from March to June 1999. The paper has been conceived as a critical dialogue with J?rgen Habermas, or rather the positions presented by him in a text entitled ?Bestialit?t und Humanit?t: Eine Krieg an der Grenze zwischen Recht und Moral?. Following a short presentation of Habermas?s point of view, in the introduction to her paper the author discusses the moral implications of, as he points out, ?the surgical precision of the air-strikes, as well as the programmatic sparing of the civilian population?, which are, according to him, the characteristics of this aggression with ?a highly legitimating effect?. She then focuses on the key and declaratively moral argument that served to justify the aggression - the protection of human rights of Kosmet Albanians and the prevention of the humanitarian catastrophe they had been allegedly exposed to. After analyzing this argument thoroughly, in several steps, the author concludes that the aggression was not, as Habermas claimed, a ?war on the border between law and morality?, but that it was actually beyond the borders of both law and morality and was deeply situated into a domain of interest-driven armed acts of the US foreign policy.

AS RELAÇÕES ENTRE DIREITOS HUMANOS E PRÁTICAS DOS POLICIAIS CIVIS: O PAPEL DA PERCEPÇÃO DOS CIDADÃOS

Como os cidadãos percebem as práticas dos policiais civis? Esses entendimentos têm alguma conexão com o conceito de direitos humanos? Em que medida os cidadãos creditam à Polícia Civil importante papel na materialização da ideia de direitos humanos, entendidos como “mecanismos capazes de prover tratamento igual aos diferentes, universalizando a aplicação da lei às distintas identidades que se especificam no espaço público” (KANT DE LIMA, 2004)? Para responder a essas questões foram utilizadas informações (dados quantitativos e qualitativos) coletadas no âmbito da III Semana de Visitas a Delegacias de Polícia (2009). A partir dessas informações, este artigo discute em que medida as práticas dos policiais civis, no Brasil, se coadunam ou não com o que se entende por direitos humanos no cenário atual.

Zápas o lidská práva. Rada svobodného Československa a helsinský proces by Mojmír Povolný (review)

Reviews 575 Povolny, Mojm?r. ??pas o lidsk? prava. Rada svobodn?ho Ceskoslovenskaa hebinsky proc?s. Stylus Press, Brno, 2007. 382 pp. Illustrations. Appendix. Index. K 290.00. The issue of human rights in Central and Eastern Europe during the Cold War has been the subject of a number of prominent works. However, the involvement of theCzechoslovak democratic exilewas not properly addressed prior to the emergence ofMojm?r Povolny's book dealing with the Council of Free Czechoslovakia and the Helsinki Accords. Povolny was not only a leading participant in the struggle for human rights behind the Iron Curtain (at one stage he even served as the chairman of the Council of Free Czechoslovakia), but also a political scientist specializing inEastern Europe at Lawrence University in Appleton, Wisconsin. His scholarly meticulousness and his own personal recollections demonstrate that Povolny is eminendy qualified to address the topic at hand. Povolny has chosen towrite thisbook in the form of a memoir. This in no way detracts from the scholarly value of thework. On the contrary, the style and quality of the language used makes the book more enjoyable to read and gives the reader a sense of the atmosphere inwhich particular events took place. The introduction touches upon the general history of the human rights issue in the twentieth century. The United Nations Charter ismentioned, as is theUniversal Declaration ofHuman Rights. In addition, theWestern European experience with human rights is contrasted with that ofCommunist Europe, and theCzechoslovak Communists' tendency to sign treaties such as theHelsinki Final Act without adhering to their terms is emphasized. The first section, which contains five individual chapters, deals with themotivations and historical background of events leading to Helsinki. Interestingly, the Soviet Union was concerned, first and foremost,with the institutionalization of the post-war status quo inEurope and, accordingly, launched a diplomatic offensive in the late 1960s,which later resulted in the Western European and American agreement to hold an international security conference inHelsinki where human rightswere also to be discussed. The ultimate result of this lengthy diplomatic wrangling was the signing of the Helsinki Final Act on rAugust 1975which, apart from other provisions, obligated signatories to respect human rights.The second section addresses the effortsof the demo cratic Czechoslovak exile to influence events inCzechoslovakia and to point out systematic Czechoslovak violations of key Helsinki human rights provi sions. The Council of Free Czechoslovakia, founded in 1949,was themain organization of the post-1948 democratic Czechoslovak exile. On the basis of his own research, this reviewer can confirm Povolny's assertion that the Council expressed concerns about violations of basic human rights in Czechoslovakia long before the issue of human rights became prominent in the international arena. The Council viewed Soviet diplomatic moves leading to Helsinki with suspicion. It is necessary to keep inmind that the Soviet invasion of Czechoslovakia inAugust 1968 and the 'normalization' process that ensued were painful events which embittered all pro-democratic Czechoslovaks, and even ledmany formerly ferventCommunists to see the evils of the Communist system.Therefore, after the signing of theHelsinki Final Act, the Council continued towork hard to keep theworld informed 576 SEER, 88, 3, JULY 20IO of ongoing repression inCzechoslovakia. The significance of domestic opposi tion inCzechoslovakia is important. Charter 77was themain domestic dissi dent organization from the 1970s onward. Far from being a revolutionary movement, Charter 77 merely called on the Communist Czechoslovak Government to enforce itsown laws, especially theHelsinki provisions ithad committed itselfto.After some dispute among the exiles, theCouncil of Free Czechoslovakia finally decided to support the activities of Charter 77. It can be said that theCouncil did itsbest towork with the domestic opposition and democratically-minded sympathizers in other countries to stand up for the rights of Czechoslovaks behind the Iron Curtain from its founding in 1949 until the collapse of Communism in 1989. In his conclusion, Povolny makes this abundandy clear to the reader. Copies of original documents appended at the end of thework add to its scholarly integrity,as do theEnglish-language summary and the index. Mojmir Povolny has produced an excellent work, which will surely broad en the horizons of all who read it.The younger generations of the post-Cold War Czech...

Slovenian Mental Health Act

Background: Diminished or even absent awareness of illness is a frequent feature of mental disorders, mostly those with psychotic symptoms. That is why efficient treatment sometimes calls for certain interventions even without the patient’s consent; for such cases a legal regulation must be provided. Ideally, such a regulation should carefully balance the protection of human rights against the feasibility of efficient treatment. Conclusions: Implementation of the new Slovenian Mental Health Act started in August 2009. The article deals with concrete examples of how this act renders treatment of certain patients with mental disorders difficult or even impossible. In many cases, even patients who consent to treatment are deprived of appropriate health care by the Act.

A Strange Case

REPORIG EUROPEANCOMPANIESANDLABOURRIGHTSINTHE US A Strange Case When cised equipment workers their right factory atRobert to strike in Bosch's Wisconsin against packaging compaexer equipmentfactory in Wisconsinexercisedtheir right to strike against company demands for wage and benefitcuts in December2004,management sentletters threateningto hirepermanent replacements to take theirjobs. Alone in the world, permanent replacements tobreakstrikes arelegalunderUS labourlaw.Facedwiththis'nuclear option'available to American bosses, workersreturned to their jobson management's terms. Based in Germany, Robert Bosch GmBhis a multinational firm with270,000 employees worldwide .Itiswidely regarded as a socially responsible company. Last year, the Robert Bosch Foundation donated$100 millionto non-profit organisations serving humanneeds aroundthe world.In keepingwithits sociallyresponsible profile, Boschhas publicly declareditscommitmentto ILO corelabourstandards. Butcontrary to itscommitment, Boschviolatedan important ILOstandard whichsaysthat threatening orusing permanent replacements to breakstrikes violates workers' freedom ofassociation. Thedisconnect reflected inBosch'saction atthe Wisconsin plantbetweenpromiseand performanceisthetheme ofa newHumanRights Watch report titled A Strange Case:Violations ofWorkers' FreedomofAssociation in the UnitedStatesby European Multinational Corporations. The report details waysinwhich European firms haveexploited weak US labourlaws to carry out aggressive campaigns againstworkers' organising and bargainingin the UnitedStates."A Strange Case" comesfrom Robert LouisStevenson's famousThe Strange CaseofDr.fekyll andMr.Hyde. Companies cited include Germany-based Deutsche Telekom's T-Mobile USAand Deutsche Post's DHL, UK-based Tesco's Fresh & Easy Neighborhood Markets andG4SWackenhut security , France-based Sodexofoodservices andSaintGobain industrialequipment,Norway-based KongsbergAutomotive, and the Dutch firm Gamma Holding. Ineachcasethecompanies' tacticsand actionsviolatedinternational standards while remaining in compliancewithweak US laws.Overand above that, management actions violatedUS labourlaws, makingthe disparity between wordsanddeedsevenmoredramatic. TheHumanRights Watch report was based on workerinterviews and workers'testimony in legalproceedings, findings and decisionsof US labourlaw authorities, company documents, and written exchangeswithcompanymanagement. The reportnotedthatall the companiescited endorsesome combination of the core labour standards of the International Labour Organisation, theindustrial relations guidelines of theOrganisation forEconomicCooperation and Development, and the freedomof association normsof the Universal Declarationof Human Rights and theUnitedNationsGlobalCompact, andother international humanrights instruments. Herearesomemoreexamplesfrom thereport: ■ DeutscheTelekomhas a SocialCharter based on ILO standards andtheOECD Guidelines statements on freedom ofassociation, butTMobileUSAmanagement spiedon workers engagedinorganising and defined 'employees engaging ingroupbehaviour' and 'talking aboutrights' as dangerous activity tobe immediately reported tomanagement. ■ Deutsche Posthasa code ofconduct basedon theUniversal Declaration ofHumanRights, ILO conventions, andtheUNGlobalCompact, but itsDHL management threatened anddiscriminatedagainst workers whosought toexercise therights setforth intheseinstruments. ■ Saint-Gobain proclaims 'Principles ofConduct respecting thephilosophy and spirit ofthe GlobalCompact', butUS management refused tobargain withworkers' chosenunionabout keyterms ofemployment. ■ Sodexosays,'Sinceitscreation, Sodexohas alwaysrecognised and respected trade unions', butitthreatened, interrogated, and fired workers who tried toform tradeunions intheUnitedStates. ■ Teseo saysit'is committed toupholding basic HumanRights and supports infulltheUnited Nations Universal Declaration ofHuman Rights and theInternational Labour Organisation CoreConventions', butitsUS Fresh& Easymanagement seta priority of 'maintaining non-union status' and stifled workers' organisational activity. ■ Group4Securicor holdsup a 'Business Ethics Policy'committed totheUniversal Declaration ofHumanRights, butitsUS Wackenhut management threatened, spiedon,andfired workersexercising rights established intheUDHR. ■ Kongsberg Automotive citestheUN Global Compact, ILO corelabourstandards, and OECD guidelines initscorporate social responsibility pledges,butUS management in VanWert, Ohio offensively lockedoutunion members whilenegotiations werestill ongoingand brought inreplacement workers. ■ GammaHoldingsigneda code ofconduct thatembraces theright toorganise underILO Conventions 87 and 98,butitsmanagement atNational WireFabricinStarCity, Arkansas, hiredpermanent replacements, incontraventionofILO standards, totakethejobs of workers who exercised theright tostrike. ■ A Dutchfirm, GammaHolding, wentahead and hiredpermanent replacements forUnited Steelworkers unionmembers who exercised theright to strike atan Arkansas factory. The HRWreportconcludedwithrecommendationsforstronger 'due diligence'by European headquarters overAmerican managers to ensure application ofcompany commitments to international labour standards.It also called for a strengthened complaint mechanism underOECD guidelines and stronger oversight bygovernment and EuropeanUnionofficials ofEuropeanmultinationalsin theirUS and otherforeign operations .Finally, thereport recommended reforms in US labourlaw to come intocompliance with international labournorms. A new report details ways in which European firmshave carried out aggressive campaigns against workers' organisingand bargainingin the US LANCE C0MPA teaches labour law and International labour rights atCornell University's School off Industrial and Labor Relations In Ithaca, New York. He Isauthor off the Human Rights Watch report summarised here Page 5Volume 17Issue 3201 0 INTERNATIONAL union rights ...

West-African court slavery judgement

REPORT□ ECAWASCOURTRULES ON FORCEDLABOUR West-African court slavery judgement I ruled an time judgement human implications It economic political have was the in West a case: rights Court the broader slavery Africa body may first and the for of in timethe Courtof an economic and politicalbody ruledina slavery case: the judgementmay have broader implicationsfor humanrightsin WestAfrica JEROEN BEIRNAERT is Coordinator of the ITUC's Forced Labour Project The Economic (ECOWAS) Community Community ruledon Court 27 of October of West Justice African 2008 of in States the the Economic Community ofWest African States (ECOWAS)ruledon 27 October2008inthe case ofHadijatouMani vsNiger. Severalaspects ofthiscase willinterest readersofInternational UnionRights. Beforegoingintothedetailsofthisparticular court case,itmaycomeacrossas somewhat artificial that a Court that was created bya primarily economicpolitical community bodyhas ruledso strongly on a questionof fundamental human rights. The ECOWASCourtwas establishedin 1991 when MemberStatesadopteda Protocol. The Protocoldoes not make any reference to humanrights although itexplicitly mentions the competence oftheCourt overdisputes related to trade, industry andcommerce. In 1993,however, theProtocol was revised as Member States agreed thathumanrights wereat thebasisofECOWAS and thatthe Community Courthad jurisdiction overallegedviolations ofrights contained inthe 1948 UniversalDeclarationof Human Rights. When it became apparentthatMemberStates would neversue themselves a supplementary Protocolwas adopted in 2005 which allowed individuals in MemberStatesto challengetheir governments withregard to violations ofhuman rights andfundamental freedoms. Until thenindividualscouldonlyseize theCourtthrough their owngovernment. Inrelation tothecase itself, itwas thefirst time thatthe courtseated in Niamey, the capitalof Niger rather thaninNigeria whereithasitsheadquarters . Thisapproachhasa fewgoodelements. Firstly itallowedaccess to thecourtcase to the necessary witnesses andallactors andstakeholders involved, including senior politicians. Secondly, itallowsthejudgement to havea real impact through good visibility and pressconference in thecountry wheretheruling is actually most relevant.It was the firsttime thatthe ECOWAScourtruledin a slavery case whichis promising. Whenthejudgement iseffectively followed and adequatemeasuresare takenbythe government as a reactionto this,the ECOWAS Courtmayproveto be an important additional instrument forthe improvement of the human rightssituation in WestAfrica.This could be called historic sincemuchdiscussionhas taken placeaboutthepersistence oftraditional forms of slavery, especially incountries intheregioncovered by the ECOWAS.1 Reports of international humanrights bodies and supervisory agencies (e.g. theILO Committee ofExperts on theimplementation ofConvention 29) haveinrecent years reported evidenceof slavery practices, notonly in Niger, butin severalcountries in theregion. Thisis despitethefactthatmostofthesecountriesincluding Nigerhave outlawedslaveryin theirown constitution and/orpenal code and have ratified the relevantILO Conventions as wellas UN and regional charters. The Nigerien NGO Timidria assistedthecomplainantHadijatou Mani, now 24 years old, throughout herlegalbattle. Infact, Timidria originally brought thecase to CourtforHadijatou, a possibilitycreated by the Penal Code. The London based International NGO Anti-Slavery International and legal campaign group Interrights supported Timidria withthedevelopmentofthecase . Hadijatou Mani's story Hadijatou 's mother was a slavewoman,known as 'Sadaka'.Hadijatou inherited hermother's class statuswhenshe was bornin Dogaraouain the Tahoua region.When she reachedthe age of twelveshe was sold to Souleymane Naroua,a friend ofhermother's master as a traditional 'sex slave'.The commercial transaction is knownas 'Wahiya', buyinga servant to serveas domestic helperand concubine.Outsideanswering to the sexualneedsofhermaster shewas alsoforced to cleanandworkthelandwhichintheenddidnot allowhermorethana fewhoursofsleep every night. Shewas notpaidatallandanyfirst hint of 'disobedience' was brutallysuppressed with physicalviolence.Hadijatouwas raped forthe first timebeforeshe was thirteen byhermaster. Underpressurefromthe publicity aroundhis case and the Penal Code of 2005 criminalising slavery undera penalty of30 yearsofimprisonment ,he granted hera liberation certificate'. It soonshowedthat themanneverintended tofree Hadijatoucompletely as he was convincedthat she was stillhis lawfulwifeowinghim'marital duties'.The Nigerien CivilCourtfirst confirmed thattherewas no formal marriage betweenthe two.Thiswas lateroverruled bytheTribunal de GrandInstance (TGI) whichbased itsjudgement on customary law. The SupremeCourtsentthe case back to theTGI butmeanwhile Hadijatou married a husbandofherownchoiceresulting in an additional claimand conviction forbigamy, sixmonths imprisonment (ofwhichshehasactuallyservedtwo ) and a penaltyof 50,000West African Francs(CFA).Whenshe appealedinthis lastcase theCourt ofAppealofNiamey declared that itwouldawaittheruling ofthenewly assembledTGI andto alignwiththat. The ECOWAScase Meanwhile,however,Hadijatouand the legal teamhadappealedtotheECOWAS Court. Itsubsequently ruledinfavour ofherclaim.Rulings of the Courtare bindingon all ECOWASMember States. The judgement acknowledges that INTERNATIONAL union rights Page 18 Volume 16Issue 2 2009 Hadijatou was clearly a slaveandthat theStateof Nigerwas responsible fornotdoingenoughto protect itscitizen from slavery. Theruling included an awardof compensation forthedamages suffered. Alltheseelementsare veryimportant sincetherehave been quitea numberof court casesforsimilar cases inwhichithas provento be verydifficult to obtaina conviction (or, if therewas a conviction, thensentencesforthe slavemasters wereminimal). Itis also an importantand progressive step to see compensation beingawardedtothevictim. A breakdown ofthejudgement is necessary to analysetheimportant messageit contains.The Court interpreted theterm ofslavery inthecontemporary...

Alfred and Emily by Doris Lessing

> I z I H D I H < I Q I ^1 o I of firewood"; the moral dilemma of those, including child soldiers, whom poverty and lies drive tokill their own people; the suffering of women; the courage and humanity of aid workers and journalistswho risk theirlives to "get the storyout"; the inaction of Western govern ments. But one also recalls the sense of communitywithin both small vil lages and huge refugee camps, the strength of women who, "though . . . victimized, emerge more heroes thanvictims," and thedignity of all who suffer within thesepages. The UN Declaration ofHuman Rights follows Hari's acknowledg ments, in which he asserts that tak ing risks for news stories means nothing "unless the people who read them will act." Hari thus chal lenges us to respond to the suffering engendered by ethnic cleansing and genocide. Michele Levy North CarolinaA&T University Doris Lessing. Alfred and Emily. New York. HarperCollins. 2008. viii + 274 pages, ill. $25.95. isbn 978-0-06 083488-3 If itwere proper for her parents' generation, or her own, Doris Less ingmight well have titledher book Emily andAlfred?or justEmily. What the author seeks is another woman in her mother, someone other than the oppressive parent who battled endlessly with her daughter, some one other than the mother portrayed in Martha Quest (1952) and A Proper Marriage (1954). Lessing's mother is most redeemed in thenovella that forms the firsthalf of this book. In her mother's (Emily McVeagh's) fic tional life, she doesn't mis-marry Lessing's father. Instead, she contin ues the nursing career she took up against her parents' wishes, marries a prominent doctor rather than a convalescent veteran, and founds a system of private schools forpoor children afterhis death. One of the assumptions Less ingmade in creatingher fiction was that World War I did not occur to ruin the lifeof theman, her father, who wanted nothing more than to farm. She is clear-eyed enough to understand that therewould have been wars on a less extensive scale? between theTurks and theSerbs, in other regions?and that a genera tionofyoung people who had never known war would be attracted to serve. But she imagines that some might return convinced that they ought to fund efforts to serve the needs of the impoverished theyhad encountered. In the autobiographical second half, Lessing speaks of her struggle to recover the better woman from the self-pitying,ailing mother who hated farm life.Both parents filled the childrenwith theGreatWar: life in the trenches, life (forhermother) as a nurse in a hospital filledwith the dying. She feels a generation of bright women were trapped in traditional roles by the disruption of thewar. Having lived through a childhood with all that frustrated mother-energy focused on her, hav ing met other women of her inter war generation whose mothers over managed them,Lessing is all forthe bright and pluckywomen being able towork outside thehome. The essays have their own charm, each focused on a slice of Lessing's life in Southern Rhodesia, remembered and sometimes revis ited: her reading as a child, what they ate, how they related to ser vants, how she discovered some thingofhermother's previous social life when shewas permitted to take out dresses in her mother's trunk, her second marriage to Gottfried Lessing, her brother's remembrance of World War II and his activities in Rhodesia's Liberation War. Appropriately, Alfred and Emily endswith a scene Idon't recallbeing in the Martha Quest series:hermoth erhosting and playing songs for the RAF pilots who were waiting for the troopships that would take them home after the war. Having ere ated a fictional life forher mother, it's as if Doris Lessing can now admit something of thepower, hap piness, and achievements of Emily McVeagh back into the real life of EmilyMcVeagh Tayler. W. M. Hagen Oklahoma BaptistUniversity Warren Motte. Fiction Now: The French Novel in the Twenty-First Century. Champaign, Illinois. Dalkey Archive. 2008. 237 pages. $29.95. isbn 978-1-56478-503-9 Even froma firstglance at the title of Warren Motte's text Fiction Now, many readers and critics may well pause before the elusive term now, for theymay associate itwith the difficulties inherent in attempting to pinpoint the current state of French fiction that remains in a continuous cycle of regeneration. Yet for those who spend too much time contem plating the impossibility indefining the now, theunderlying, polyvalent characteristics of French fiction will remain out of reach and the true import ofMotte's textwill remain undiscovered. However, those who have ques tioned French fiction'spurpose and usefulnesswill continue, eitherout of curiosity?for Motte's title is, in fact, provocative?or out of an attempt to better comprehend the contempo rary French literary scene. For these IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIM 78 i World Literature Today ^Hjj| ...

What's Wrong with Collective Labour Law in Turkey?

REPORT□ LABOURLAWINTURKEY What's Wrong with Collective Labour Law in Turkey? I law Collective still 1980 design institutional holds takeover military labour of the the law stillholds the institutional design ofthe 1980 military takeover GAMZE YÜCESAN-ÖZDEMIR isAssociate Professor at Ankara University in Ankara The adaptation its Turkish third draft government of national Acquis programme recently Communautaire announced forthe itsthird draft nationalprogramme forthe adaptation of Acquis Communautaire (Europeanlaw). The first twodraft national programmeswere represented in 2001 and 2003 respectively. The media celebrated the declarationof thethird draft nationalprogramme as a signalforfuture developments in the realmof tradeunionrights. The third draft nationalprogramme urgesthegovernment to initiate preparations topromulgate theproposaloflaw changingtheexisting legislation on tradeunions, trade unionrights andstrikes. Howevertheproposalof law brings no significant changesintherealmof tradeunionrights, including theright to strike. Turkey'sthirdnationalprogrammefor the adaptationof the Acquis statesthatefforts on reinforcing social dialogue and facilitating and encouraging cooperation withEU partners will continue, andhighlights that theenactment ofthe 'Draft law on tradeunionrights' and the 'Draft law on collectiveagreements, strikes and lockouts 'willbe ensured.In addition, thesameprogramme urgesthat theserearrangements shallbe donewitha viewtoexpanding trade unionrights and strengthening the institutional capacitiesof relevant departments ofthestatemonitoring the implementation oflabourlaw. It is clearly evident that the Turkish Government prefers ambiguous terms rather than accepting theneedtoactincompliance withthe ILO Conventionsratified by Turkey.Another pointworthy ofmention is that thetextdoes not containany reference to the EuropeanSocial Charter, whose provisions on tradeunionrights has neverbeen approvedby the governments composedundertheJustice and Development Party (AKP).1 Thisshort survey willfocuson thechallenging aspectsoftradeunionrights inTurkey. Itwillbe arguedthatthe mainproblemin the realmof tradeunionrights restsintherelevant articles of theTurkish Constitution. Therefore, contrary to theallegations ofthegovernment as stated inthe thirddraftnational programme, any serious attempt to 'reform' the law on trade unions shouldstart bywayofchanging therelevant constitutional articles. To put it differently, sincere efforts toenhancethealready weakenedrights of labourandtrade unionsshouldfocuson theconstitutional articles. The constitutionalregulationoftrade union rightsinTurkey Sincethedecisionin 1999on Turkey's candidate statusforEuropeanUnionmembership, Turkey has adoptednumerousimportant constitutional andlegalreforms intended tostrengthen democracy , theruleoflawandtheprotection ofhuman rights. However, theseefforts didnotincludeany positive development intheconstitutional articles regulating collective labourlaw in Turkey. The mainbodyoftheconstitutional texton thecollectiverights of thelabourfront stillholds the institutional designofthe1980military takeover, whichprimarily targeted theworking classandits allies.Today,theconstitutional articles regulating thecollective rights ofworkers havemassivediscrepancies whencompared with theconstitutional systems ofwestern Europeanstates. Articles 51 through 54 ofthe1982Constitution pertain tocollective rights oflabour. The right to organise labourunionsis described inArticle 51 oftheConstitution. ThisArticle limits theright to establish labourunionsin variousways.First of all,thedefinition of 'worker' is notincludedin thearticle. Thisis a sourceofsubsequent violationsof theright to organise. Governments can interfere with the rightto organise,without infringing the wordingof the Constitution, by way of employing restrictive definitions of the termin the relevant parliamentary laws. For a start, giventhe changingnatureof the labour process, we mayoffer theparties theuse ofsociologicaldefinitions of'worker', rather thanlegal ones referringsolely to labour contract. Currently, whatthelabourfront inTurkey needs is a capacious definition for organising, for instance, the retired and the unemployed, into labour unions. In addition,Article90 of the Turkish Constitution statesthatTurkey is bound to let international agreements in the realmof humanrights prevailoveritsown parliamentary laws.The ratified UN Declaration and 1966twin agreements on humanrights, and theEuropean Declaration on HumanRights, statethateverybodyhastheright toform trade unionstoprotect his or her collectiveand personal interests. Currently, despitedomestic courtrulings stating otherwise,2 there is no clearandsatisfying reason whya retired worker and/or unemployed person shouldnothavetheright to establish and/or be a member ofa tradeunion. Another pointto be mentioned is theneed to eliminate thelegalobstaclesconcerning civilservants . Thefifth paragraph ofArticle 51states that theexceptions andlimits oftherights ofcivilservantswho do not have workerstatusshallbe prescribed bylaw inlinewiththecharacteristics oftheir job. Firstly, thesepeopledo nothavethe right to strike, thesituation whichmostrenders ineffective theconstitutional right to organise for people underthiscategory. Secondly, thewordingoftheArticle bestowsupongovernments the capacityto destroy the essence of the right to organisebyway ofkeepingtheexceptions and limits as largeas possible.Thirdly, theframework INTERNATIONAL union rights Page 20 Volume 16Issue 2 2009 brought aboutbythelimitation clauseexpressed inthesecondparagraph ofArticle 51 statesthat the right to forma union shall be restricted, amongothers, forpurposesofpreventing crime, ofpublicmoralsand oftherights and freedoms ofothers. Suchwording, in conformity withthe anti-labour soulofthe1982Constitution, declares thatlabour unions and relevantorganisations mayhavesomething todo withcrime orimmoral activity, andhavesomething against thefreedom ofothers. Thisparagraph is inclearcontrast with theidea oftaking labouras a constituent partof society even in abstract terms. Furthermore, the first paragraph ofArticle 51 statesthattheactivitiesoflabourunionsshouldbe limited solelyto theeconomicand socialinterests oftheir members .Thisisextremely problematic sincepolitical rights cannotbe separatedfromworkers'economicand social rights/interests. Moreover, the International Labour Organisation (ILO) Convention 87 on freedom ofassociation is...

Fiction Now: The French Novel in the Twenty-First Century by Warren Motte

Fiction Now: The French Novel in the Twenty-First Century by Warren Motte

The “Aporias of Human Rights” and the “One Human Right”: Regarding the Coherence of Hannah Arendt’s Argument

Christoph Menke The “Aporias of Human Rights” and the “One Human Right”: Regarding the Coherence of Hannah Arendt’s Argument IN 1 9 4 9 , IMMEDIATELY AFTER THE GENERAL ASSEMBLY OF THE NEWLY founded United Nations had adopted the Universal Declaration of Human Rights in December 1948, Hannah Arendt published—first in English and rapidly afterwards in German—a short text that was noth­ ing less than a scathing critique of the recent attempts to reanimate the idea of human rights as political foundation (Arendt, 1949b).1 Arendt pointed to the declaration’s complete conceptual confusion, which would “invariably [lead] to philosophically absurd and politically unre­ alistic claims such as that each man is born with the inalienable right to unemployment insurance or an old age pension” (Arendt, 1949b: 34). This confusion corresponds to a conspicuous “lack of reality” (Arendt, 1949b: 37) that, for Arendt, the thinker of political judgment, of the political as practice of judgment and of judgment as political, was arguably one of the gravest objections to be raised against a political action. W hat she objected to in her critique is the fact that recent attempts to reformulate human rights merely repeat, in spirit and in attitude, the traditional declarations formulated at the end of the social research Vol 74 : No 3 : Fall 2007 739 eighteenth century without accounting for the profound crisis that has befallen the idea of human rights since those rights failed in the face of totalitarian politics. We do not know if Hannah Arendt had the final version of the Universal Declaration of Human Rights at hand when writing her text.2 However, given the even sharper repetition of her critical diagnosis in the famous ninth chapter of The Origins of Totalitarianism, which was published two years after the essay, we have no indication that Arendt would have been convinced the declaration was an adequate response to the totalitarian challenge ofhuman rights, despite the fact that the preamble proclaimed it to be an expression of the “outrage” of the “conscience of mankind” in view of the “barba­ rous acts” committed by totalitarianism. In fact, Arendt rephrases her critique in such a way that an adequate response to the totalitarian challenge to human rights seemed to be by and large impossible as such—at least a response that would be given in the name of human rights. It is in her book on totalitarianism that Arendt formulates the “aporias of the Rights of Man”3 as a way of describing the confusing situation into which totalitarian politics brought human rights—not only the possibility of practically realizing human rights but the very idea of human rights itself is called into question. An aporia, however, is a situation with no solution. At first glance, there seems to be surprising agreement, even among authors who work with Arendt from very different angles, as to how we must understand her diagnosis of a crisis of human rights deep­ ened to the point of an aporia. Giorgio Agamben concludes from this diagnosis that we have to abandon “decidedly, without reservation, the fundamental concepts through which we have so far represented the subjects of the political (Man, the Citizen and his rights [...])” (Agamben, 2000: 16). Jean Cohen draws the opposite conclusion: she holds that in order to save the idea of human rights we need to counter the “disdain for universalistic argumentation” expressed in Arendt’s critique of the declaration of human rights, and reconstruct a “moral principle (i.e., a universal principle of justice)” (Cohen, 1996: 183).4Just like Agamben, Cohen reads Arendt’s diagnosis of a crisis or even the aporia of the idea 740 social research of human rights as exhibiting their untenability. However, instead of surpassing Arendt like Agamben, she criticizes her for this diagnosis. The title of Arendt’s essay in English asks the skeptical question: ‘“The Rights of Man’: What Are They?” This, however, is not the title she chose for the German version of the text published a little later. Instead of the ambivalent question that we find in the English version, the German version is entitled with the assertive statement Es gibt nur ein einziges Menschenrecht: ’’There Is Only One...

(De)Constructing the Human as Human Institution: A Reflection on the Coherence of Hannah Arendt’s Practical Philosophy

Etienne Balibar (De)Constructing the Human as Human Institution: A Reflection on the Coherence of Hannah Arendt’s Practical Philosophy WORKS HAVE THEIR HISTORY, WHICH IS BOTH INTERNAL, MIRRORING AN intellectual development that sometimes can involve great shifts and rectifications, and external, responding to events and addressing ques­ tions that were not fully anticipated. This seems to be particularly the case for someone who, claiming to look for an understanding of the changes that the historical present has produced, and wanting to remain open to the unpredictable element of politics, has given a crucial mean­ ing to the category of the event. More than any great thinker, perhaps we might suggest that Arendt is one who never wrote twice the same book, and more than that, never wrote two successive books from the same point of view. She would allow herself to become transformed by the writing itself, and by the correspondence between the writing and the event, although this correspondence probably is neither straightfor­ ward nor completely visible. It also does not mean that this historicity, this character of the work as a continuous, unfinished experiment of thought, will abolish the permanence of certain crucial questions that social research Vol 74 : No 3 : Fall 2007 727 remain the horizon of the philosophical quest, and even account for its apparent variations. Without further justifications I will ask permis­ sion to borrow elements from texts that belong to different periods and different genres, even looking for extremely heterogeneous formula­ tions, in order to give the problem its maximum saliency. A PARADOXICAL “CRITIQUE OF HUMAN RIGHTS” Why is there a persisting difficulty at the core of Arendt’s discourse on human rights, at least from a philosophical point of view? It is—to put it first in schematic terms—because Arendt has developed one of the most radical critiques of the idea of an anthropological foundation of rights, and the classic doctrine of “human rights” as a foundation of the political, while pushing to the extreme the vindication of some of these rights as unconditional, and assimilating their neglect to a virtual or actual destruction of the human. So there is a first level of the diffi­ culty that we might describe by asking the following question: How is it possible to reconcile a critique of the idea of basic human rights while at the same time locating a typical politics ofhuman rights at the core of politics in general, especially democratic politics? The difficulty seems to be not solved but, on the contrary, rein­ forced and aggravated, when we look at the kind of “anthropology” that was presented by Arendt in what arguably is her most systematic theoretical treatise, namely The Human Condition, published in 1958. We know that the term “condition” here carries a critique of speculative or metaphysical theories of “human nature” in a double sense: it refers to the fact that there is no such thing as a universal essence of the human inhabiting each individual person, to parody a famous Marxian formula that seems to be perfectly compatible here, but “only” (and in fact this is more, not less) a plurality of singular humans, and the “world” they form by relating to each other in a more or less conflictual manner. It also refers to the great problem addressed in the book, this time against the Marxian tradition, namely the “alienating” character of the rela­ tionship between two kinds of conditions: those that concern the repro­ duction of life, or the “natural” conditions, and those that concern the 728 social research construction of the public realm, or the “political” conditions. What seems to Arendt to have become typical of modernity is a specific form of alienation (not only self-alienation, but, as she insists, world-alienation ), whereby the reproduction of life has become increasingly technicized , making it possible for humans not only to view themselves as self-producing beings, but also to substitute this technical reproduction of life for the construction of the “good life,” or the world of politi­ cal interactions. The paradoxical result is that the political becomes reduced to its “natural” basis in the inverted form of an absolute artifi­ ciality. This is a...

Entrevista com Juan Méndez, presidente do International Center for Transitional Justice (ICTJ)

Juan Mendez is a lawyer who for decades has dedicated his career to the defenseof human rights. As a result of his work representing political prisoners during theArgentine military regime, he was himself arrested and subjected to torture. Aformer member of Human Rights Watch and the Inter-American Institute ofHuman Rights, Mendez also headed the Center for Civil and Human Rights at theUniversity of Notre Dame in Indiana, United States, and for three years was a member of theInter-American Commission on Human Rights of the Organization of American States (OAS). InJuly 2004, he was appointed United Nations Special Advisor on the Prevention of Genocide, aposition he held until recently. President of the International Center for Transitional Justice, healso serves on the boards of directors of the Center for Justice and International Law, GlobalRights and the Open Society Justice Initiative, and is an advisor to the Social Science ResearchCouncil’s Conflict Prevention and Peace Forum and the American Bar Association Center forHuman Rights. He has lectured at Georgetown Law School, at the Johns Hopkins School ofAdvanced International Studies and at Oxford, and has received several human rights awards,among them the Monsignor Oscar A. Romero Award, presented in April 2000 by the Universityof Dayton for his leadership in service to human rights, and the Jeanne and Joseph SullivanAward of the Heartland Alliance, in May 2003.JUAN MENDEZ

Reconstituting ‘Human Security’ in a New Security Environment: One Australian, Two Canadians and Article 3 of the Universal Declaration of Human Rights

This article explores a controversial claim by the Commonwealth Attorney-General that counter-terrorism legislation is justified by reference to the obligations of governments to ensure their citizens' human security, which, in tum, is suggested to flow from article 3 of the Universal Declaration of Human Rights (UDHR).I As the title suggests, the article focuses upon and analyses the views of the Attorney-General (the one Australian) and two Canadians influential in the field of human security, as the Attorney-General's particular assertions regarding human security and human rights have been articulated and advanced by citing the writings of these two Canadians, Irwin Cotler and Louise Arbour.

Sex Differences in a Pink-Collar Occupation

Jusqu'a present, la litterature relative au devoir de representation syndicale n'a pas tente de mettre en evidence les distinctions entre les interdictions generales d'agir avec arbitraire, avec discrimination, avec mauvaise foi et avec negligence grave. Cet article a pour objet de demontrer la portee differente de chacune de ces notions en presentant un cadre d'analyse des obligations qui decoulent du devoir de representation syndicale. Deux categories d'obligations sont identifiees et analysees : les obligations specifiques a la fonction de representant et les obligations liees a l'intensite de la representation.

Who Shall Be Judge?: The United States, the International Criminal Court, and the Global Enforcement of Human Rights

The International Criminal Court, empowered to prosecute individuals guilty of the worst human rights atrocities, has encountered firm resistance from the United States. Underlying this dispute is a clash between two different models for achieving the global enforcement of human rights: a collective enforcement model exemplified by the Court, and a unidirectional enforcement model favored by the US. Both models present difficulties, but those of the collective model are curable, while those of the unidirectional model are not. Since the ICC cures the most significant difficulties associated with the collective model, it deserves US support. This paper addresses several of the specific legal, moral, and political controversies that have surfaced in debates over the ICC.

Konsepsi Hak Asasi Manusia dan Implementasinya di Indonesia

The issues of human rights constitute the global issues recently that will not ignore with some reasons including in Indonesia. The concept of human rights and its realization in each state may not similar although actually the substance of human rights is equal. In this respect there are three concepts and implementations of human right in the world that be regarded as the representatives of western states, Socialism-communism and Islamic doctrine. The consequence of human rights emerges human obligations, that both human rights and human obligations are parallel and a system. The ignoring one of them will raise heavy infraction of human rights itself. The Implementation of human rights in Indonesia particularly even though many cases emerge generally either development or the maintenance ofhuman rights seems the progress. In this sense, the regulating law of human rights by legislating the rules and by establishing the Human Rights Court in overcoming many cases of heavy evading of raised human rights.

CASE NOTE

DEFINING THE LIMITS OF PERMISSIBLE EMPLOYMENT DISCRIMINATION AGAINST PERSONS LIVING WITH HIV/AIDS IN SOUTH AFRICA: HOFFMAN V. SOUTH AFRICAN AIRWAYS [2000] 12 BLLR 1365.Perhaps the most positive and exciting aftermath of the apartheid era is the construction of the new South Africa upon the foundation of a Constitution and other legal instruments that are unanimous and unambiguous in two respects. The first is in their proscription of unfair discrimination and the second is in their permission of statutory and other measures aimed at eliminating the effects of past discrimination on those groups of persons who were at the receiving end of same. The provisions of these instruments as well as their tenor and spirit reveal an unmistakable national resolve to break from a culture of racial discrimination to a constitutionally protected culture of human rights for South Africans of all ages, classes and colours. Without doubt, the most important of those provisions is the equality clause of the Bill of Rights contained in the second chapter of the Constitution. This probably follows from a realization of the fact that equality is fundamental to “the maintenance and propagation of human rights in a democratic body politic, particularly in an acutely divided society” such as South Africa.

Governance, Decentralisation, and Poverty: The Case of Pakistan

Human development and human rights share a common vision and purpose: to secure the freedom, well being and dignity of humanity. Human development is as essential for human rights as the latter is for the former. Historical evidence suggests that the more civilised societies were those that gave a higher priority to both, for example, the Greek, the Roman and the enlightened years of early Islam. The freedom from want is perhaps the one inalienable right of humanity which stands between dignity and indignity and which must be mitigated against by both state and individual.1 For the first time in history mankind adopted these and other human rights when the Universal Declaration of Human Rights was adopted by the United Nations in 1948. Today all but one of the six core covenants and conventions have been ratified by at least 140 countries and state sponsored anti-poverty programmes were initiated globally, most with the help of civil society [UNDP (2000)].

Public Opinion and the Contradictions of Jimmy Carter's Foreign Policy

President Jimmy Carter's failure to achieve popular support for his foreign policy is commonly attributed to his disregard of public opinion. The author evaluates this perception by examining the Carter administration's use of polls in the areas of human rights and U.S.‐Soviet relations. Archival material confirms that Carter did not ignore public opinion; rather, his polling operation did not provide the White House with a complete and objective portrait of public attitudes. Carter's team assumed that public opinion on foreign policy was malleable and lacked structure. Thus, no effort was made to determine whether the contradictions pollsters found on the surface were actually held together by an underlying structure. Therefore, the Carter White House had neither an accurate gauge of public attitudes nor an understanding of those attitudes sufficient to build support for its policies.