Positive Human Rights Research Articles

The Right to Freedom of Opinion and Expression of The Members of The Institution of The National Police of Peru

Likewise, we intend to have police officers whose fundamental rights are respected in accordance with the provisions of the Political Constitution of Peru, in the understanding that they have the right to opinion and expression just like any Peruvian citizen, so that they serve society in the different fields of action thus contributing to the development of the country. Promote a true rule of law and respect for the fundamental rights of the members of the National Police of Peru, because the imposed silence harms the members of the National Police; All citizens are equal before the law. Recognize the dignity of the Police as a human being, expressed in their freedom of the right to opinion and expression. The value of the human person is above all else. The person is the end, the rest is the means. That the Members of the Police Institution of Peru be recognized the right to Opinion and expression because they are positive human rights in a legal system. It can be stated that they are human rights concretized spatially and temporally in a specific State. Human rights terminologies are used in the international arena. because what they are expressing is the planetary will of international declarations, the universal declaration of human rights as opposed to fundamental rights.

The Essence and Legal Nature of Political Rights and Freedoms in the System of Other Human Rights

Examines the essence and problems of determining the legal nature of political rights and freedoms in the system of other human and civil rights from the point of view of the theory of natural and positive human rights; The doctrines of scientists regarding the classification of political rights, their criteria, correlation with personal, socio-economic rights are revealed within the framework of constitutional legal personality. The author concludes that, unlike other fundamental rights, political rights and freedoms, while not being absolute rights, are mainly associated with the institution of citizenship; implemented in an individual and collective format, and the essence of these rights depends on the level of development of the democratic mechanisms of the state, in creating the necessary conditions for the active participation of citizens in the management of affairs of state and public importance.

A capability approach to the sustainable development goals: towards positive corporate human rights obligations

ABSTRACT In this article, we argue that the Sustainable Development Goals (SDGs) should be viewed through the lens of the capability approach. The capability approach lens normatively instils the SDGs with positive human rights protection obligations for business actors, obliging business actors to not merely refrain from breaching human rights but to actively provide affected individuals and communities with capabilities that ensure the protection and fulfilment of their human rights. The capability approach perspective also allows us to bring together two parallel regulatory frameworks, that of the SDGs and the UN Guiding Principles on Business and Human Rights (UNGPs), which considerably enhances the transformative potential of existing and developing corporate human rights due diligence legislation.

PERSPECTIVE OF ISLAMIC LAW IN COUNTER-RADICALISM IN INDONESIA

Wrong understanding of jihad and mis-implementation in a non-war atmosphere (daar as salam), has given rise to radical attitudes that lead to violent acts of terrorism. Studies in this field are generally from the point of view of positive law and human rights as part of counter-radical thinking. This paper explains the background of thoughts that give rise to radical attitudes, and shows approaches to criminal law and Islamic law in the context of counter-radicalism. The legal instruments discussed are Law No. 15 of 2003 and Law No. 5 of 2018. The discussion of Islamic law takes the perspective of fiqh jinayat which is related to rebellion against the state and murder, the conditions for imposing rebellion and murder, and punishment for the perpetrators. Through this explanation, it is hoped that it can correct the meaning of the arguments for jihad which are the roots of radical attitudes.

Accounts of vulnerability within positive human rights obligations

AbstractAccounts of human beings as vulnerable have provided powerful reposts to liberal individualism in recent decades. Concurrently, the European Court of Human Rights’ jurisprudence on Convention states’ positive obligations often obliges public authorities to address particular vulnerabilities. These developments reflect elements of different theoretical accounts of vulnerability but lack a coherent approach to the human subject. Exploring the impact of this in the UK Supreme Court’s jurisprudence, we evaluate two case studies in which positive obligations have been imposed on the police; (1) public order in the context of inter-community tensions in Northern Ireland (DB v. Chief Constable of Police Service of Northern Ireland) and (2) police investigations in regard to serial sexual offending (Commissioner of Police of the Metropolis v. DSD). This jurisprudence illustrates how some domestic judges are supplying their decisions with rationalisations which are lacking in the European Court’s case law.

Objectives of State Human Rights Protection Activities in the Russian Federation

The paper defines the author’s approach to the concept, types, characteristics of the goals of state human rights protection. In its most general form, human rights protection includes a system of actions carried out by State bodies and organizations, as well as civil society institutions and international organizations, aimed at restoring violated and creating appropriate conditions for implementation of human and citizen rights, freedoms and legitimate interests, as well as collective rights and public interests of groups of citizens, commercial and non-commercial organizations.Researchers propose to distinguish the following types of human rights protection objectives: general and particular; basic and non-basic; final, intermediate and immediate; objectively true and objectively false; real and unreal; timely and untimely; substantive and instrumental. Indeed, the available academic developments on this issue are of great interest, but largely they characterize the human rights objectives enshrined in legislation, rather than practice of human rights protection.The paper elucidates and describes in detail such necessary signs of a human rights protection objective as its humanism, moral validity, social conditionality and legal significance.The classification of the types of human rights objectives is defined; it is proposed to distinguish strategic (general) and tactical (private) objectives; law enforcement, law-making and «law-enlightening» ones; positive and natural law human rights objectives.The paper concludes that there is a need for comprehensive consideration of the goals of human rights protection in legislation and law enforcement practice. It is also indicated that a necessary characteristic of human rights protection is its implementation by specific legal methods that are subject to strict regulation by means of provisions of existing normative legal acts or, in any case, they do not contradict them, and in addition, should not go beyond ethical norms and principles.

HAK MEMILIH TNI DAN POLRI DALAM PERSPEKTIF HUKUM POSITIF DAN HAK ASASI MANUSIA

Members of the TNI and POLRI as part of Indonesian citizens should have human rights, especially the political right to vote in elections. However, in reality, the right to vote for these two agencies is limited by the provisions in force in the legislation. Therefore, this research was conducted to analyze the provisions on the right to vote for members of the TNI and POLRI from a positive law and human rights perspective. This research uses normative juridical methods such as a conceptual approach, a state approach, a historical approach and an analytical approach. Based on the research results, there is a decline in democracy looking at the history of elections in 3 periods, namely the old order, the new order and the reform era. Apart from that, there is a lack of synchronization between positive legal provisions and each other which regulate human rights and political rights of Indonesian citizens

Cannabis Regulation Through the “Without Right” Clause in Article 2(1) of EU Framework Decision 2004/757/jha on Illicit Drug Trafficking

Abstract Several EU states have shown initiatives towards a more lenient approach to the regulation of cannabis cultivation and trade for recreational use. One possibility that is being investigated is whether a national regulatory system for controlled trade of recreational cannabis can be developed in accordance of the EU Framework Decision 2004/757/jha. The ‘without right’ -clause in Article 2(1) of this decision, from a linguistic point of view, does seem to allow the introduction of such a licensing system. In fact, such a system would not cross the system or the purpose of the Framework Decision, if such licensing system does not result in cross-border effects or the hindering of transnational cooperation in combatting cross-border drug trafficking. However, this possibility is only of theoretical nature considering the clear and strict obligations ensuing from the UN narcotic drugs conventions. In order to regulate recreational cannabis within the boundaries of public international law, states can: (1) denounce the UN narcotic drugs conventions; (2) deviate from the obligations of the UN conventions on the basis of positive human rights obligations; (3) create an inter se agreement between like-minded states that deviates from the UN conventions; and (4) denounce the UN drugs conventions and re-access subsequently with a reservation allowing for regulation of recreational cannabis. We argue that these options can have a combined strengthening effect and indeed present a legally sound and politically viable opportunity to regulate recreational cannabis without denouncing the whole UN drug control system.

Accounts of Vulnerability within Positive Human Rights Obligations

Accounts of Vulnerability within Positive Human Rights Obligations

Reviving the Distinction between Positive and Negative Human Rights

AbstractIncreasingly firm rejections of the distinction between positive and negative human rights as incoherent have created a gap between theory and practice, as well as tensions within legal doctrinal and philosophical literature. This article argues that the distinction can be preserved by means of a structural account of the interaction of duties within human rights, anchored in case law on the right to freedom of assembly in Article 11, the right to free elections in Article 3 of Protocol 1, and the right to security as enshrined in Articles 2, 3, 5, and 8 of the European Convention on Human Rights.

POSITIVE HUMAN RIGHTS OBLIGATION OF STATES AND THE USE OF AUTONOMOUS WEAPON SYSTEMS DURING LAW ENFORCEMENT OPERATIONS

Autonomous weapon systems are artificial intelligence-based, modern weapon systems that can identify and destroy targets without meaningful human intervention. In this article, human rights violations that may occur in case of widespread use of autonomous weapon systems in law enforcement operations in the near future will be examined and the positive obligations of states will be determined. States' positive human rights obligations in line with the United Nations, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, can be listed as weapon selection and the duty of precaution, the official training of law enforcement officers, procedural obligation, the right to explanation and the right not to be subject to completely automatic decisions. The research results of this article offer that, in line with the existing case law of human rights courts, autonomous weapon systems cannot comply with the positive obligation on the right to life.

The judicial assessment of states’ action on climate change mitigation

AbstractThe Supreme Court of the Netherlands construed the state’s positive human rights obligations as requiring a 25 per cent reduction of its greenhouse gas emissions by 2020 compared with 1990 levels. This article explores how judges can decide the level of state effort required to mitigate climate change. To date, judges have predominantly approached this issue by seeking to identify an elusive benchmark, either by deduction from global objectives or induction from state conduct. This article shows that the judicial assessment of a state’s requisite efforts inevitably relies on equity infra legem. Acknowledging this, judges could learn from the international courts’ experience with establishing clarity in the midst of vague legal rules.

Negotiated rights: UN treaty negotiation, socialization, and human rights

International relations scholars have noted the importance of negotiations and socialization in shaping state human rights. So far, we know surprisingly little about how negotiation participation shapes human rights practices. I argue that human rights treaty negotiations socialize states in important ways through repeated interactions in a formal institutional structure. Focusing on the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women, I test whether negotiating states improved, worsened, or made no changes in their rights practices. Using data on UN negotiation participation, I found states negotiating the treaties contributed to positive human rights practices. This finding was the strongest around 10 years after treaty creation, although it was significant decades after treaty creation. The finding held against robustness checks. This research contributes to the study of human rights law, compliance, and socialization within international organizations.

Damian Etone, The Human Rights Council: The Impact of the Universal Periodic Review in Africa (Routledge, 2021, xv + 215 pp, £36.99) ISBN 9781032175317 (pb).

The United Nations Human Rights Council (HRC), established in 2006, brought with it an innovative mechanism for reviewing states’ human rights performance—the Universal Periodic Review (UPR). Operating in four and a half year cycles, the UPR is a state-led peer review mechanism whereby UN member states participate in an interactive dialogue and receive recommendations to improve their human rights standards. It is a wholly cooperative process, and so can be understood as a ‘soft’ mechanism, the recommendations of which are not legally binding on the state under review. As a non-coercive and non-confrontational platform, the UPR was subject to early criticism for being ‘dependent on the goodwill of states’ and ‘institutionally weak’ (p 23). In light of these differing views on the mechanism’s potential, research has sought to assess, inter alia, the extent that it generates positive human rights changes on the ground, and what factors may contribute to this.

Human rights and climate change litigation: should temporal imminence form part of positive rights obligations?

This article examines how the concept of temporal imminence has evolved to become a precondition to a violation of a positive human rights obligation in a number of jurisdictions. We trace the case law back to its roots, especially in the European Court of Human Rights and the Inter-American Court of Human Rights, and find no clear rationale for its inclusion as a criterion of positive obligations in some cases, and serious divergence between cases with apparently similar facts. This analysis elucidates how temporal imminence has found its way into the recent decisions in Urgenda and Teitiota, which considered the link between climate change and positive human rights obligations. We consider how temporal imminence is a particularly inappropriate factor in climate change cases given the long-range nature of the threats. With courts across the world considering climate change and human rights arguments for the first time, we conclude with a note of caution against importing temporal imminence as an element of positive human rights obligations or otherwise introducing it. We argue that in the context of climate change, courts should avoid setting a requirement for a connection between a specific action and event, and rather, observe the wider context of alleged rights violations.

Mechanism to protect human rights from illegal activities of FRONTEX within the EU

The article is devoted to the study of mechanisms to protection human rights from illegal activities of FRONTEX within the EU. The author notes that with the adoption of Regulation 2019/1896 the mandate of the Agency was significantly expanded, including by giving its staff executive powers. At the same time, the Agency has negative and positive human rights obligations, which stipulate that FRONTEX staff must not only refrain from committing violations, but also take all possible measures to ensure the fundamental rights of each participant in joint operations. However, the complex nature and lack of transparency in the Agency's operational activities increase the risk of serious incidents. In view of this, an important guarantee of respect for fundamental rights is the development of effective protection mechanisms. The article analyzes the grounds and procedure for appealing to the European Ombudsman, the European Court of Justice, as well as the use by victims of a complaint mechanism within the Agency. Attention is drawn to the shortcomings of out-of-court mechanisms for the protection of human rights, primarily due to the recommendatory nature of the conclusions adopted as a result of complaints. The functioning of the internal mechanism for consideration of individual complaints by the Agency is positively assessed, but attention is also paid to the need to increase its autonomy and develop an appellate procedure for appealing decisions. It is concluded that the most effective remedy within the EU for victims of misconduct as a result of FRONTEX's unlawful act is the Court of Justice. The use of this mechanism requires a more careful collection of evidence to prove the causal link between unlawful act and harmful consequences, which is a difficult task for migrants who have been victims of violations.

Sport Administrators' Perspectives on Advancing Safe Sport.

Numerous international high-profile cases of athlete abuses have led to efforts to advance what has been termed “Safe Sport.” Sport and coaching organisations are urgently designing and implementing policies, procedures and programmes to advance a culture of safe sport. However, we posit that these endeavours are occurring without a conceptual framework about what constitutes safe sport or how to achieve it. Without a consistent conceptual framework for safe sport, prevention and intervention initiatives may not be fully realised. As such, the purpose of the study was to explore sport administrators' perspectives of how to advance safe sport. Given the leadership positions sport administrators hold, understanding their perspectives may be helpful in informing a framework to guide the development and implementation of safe sport strategies. Using a constructivist grounded theory approach, semi-structured interviews were conducted with 13 sport administrators from different sport and coaching organisations to elicit views on how best to advance safe sport. The findings indicated that a multi-faceted approach embracing multiple advancement strategies was reportedly essential for progressing safe sport. Specifically, the sport administrators recommended that sport organisations establish a universal framework of safe sport, design and implement education, implement and enforce policies, establish independent monitoring and complaint mechanisms and conduct research to ensure that advancement strategies are current and applicable. The participants suggested that these advancement strategies are necessary to evolve sport from a culture that embraces hegemonic masculine narratives, interpersonal violence and controlling coach–athlete relationships, to a culture of sport that extends the safe sport focus beyond the prevention of harm to the promotion of positive values and human rights. The findings were interpreted through a safeguarding lens to propose a framework for achieving safeguarding sport, defined by the prevention of harm and the promotion of positive values in sport.

Research Informed Competencies for Human Rights Field Education in Social Work

Using four research projects completed since 2016, the authors highlight the importance of social work field education in human rights and illuminate potential core competencies that are relevant to students' learning about human rights violations that can occur during forced migration, including refugee transit and resettlement. The four competencies the authors came to identify through their research are relevant to helping students develop as social work professionals engaged in human rights protection and advancement. These competencies are (1) recognizing and labeling human rights violations, (2) understanding positive and negative human rights as protective factors, (3) witnessing people's plight resulting from human rights violations, and (4) appreciating the systemic impact of human rights violations on human well-being. The authors suggest the development of two field education structures that support student learning of those competencies. One structure is the human rights observatory in which students can learn firsthand about human rights violations and their consequences through interactions with people who have experienced such violations. Another structure is the human rights intervention design workshop in which students can work collaboratively with others, particularly those who have experienced forced migration and ensuing rights violations, in creating innovative community support systems, particularly for resettlement.

Positive (state) law as a consequence of natural inalienable human rights

The article reveals the problem of the relationship between positive (state) law and natural inalienable human rights. It is emphasized that consideration of this problem is impossible without recourse to the main types of legal understanding. Due to the long-term dominance of the Legist doctrine in our legal sphere, many current lawyers continue to think in accordance with its guidelines, ideas, stereotypes, and so on. One such stereotype that needs to be dispelled is the perception of positive law as primary in relation to human rights. In this study, we highlight the problem of the secondary nature of state power and law in relation to man and his inalienable rights. It is shown that from the standpoint of the Legist doctrine, where the key principle is the principle of identity of law and legislation, the monopoly of the state and law in law is asserted, the distinction between law and legal norm becomes impossible. The principle of the identity of law and legal norm, consolidating the state-monopoly of power in law, thus elevates the state over man, the law, which has no legal essence, over law. In contrast to this approach, in the context of the natural-legal paradigm, the distinction between law and legal norm is possible, the primacy and certainty of man and law in relation to the state and law is asserted. It is in this type of legal understanding that the central category is the category of natural law, which is thought of as a set of fundamental principles, the origins of which in human existence, which reflect the most important connections of this existence, must be universally binding. Recognized inalienable human rights are positive by the state authorities, that is, they legislate in accordance with the requirements of the rule of law, the origins of which are in natural law doctrine. If these requirements are met, people and society receive legal legislation as an expression of the unity of legal content and legal form. It is proved that state law is a consequence of natural inalienable human rights.

A Review of Monograph by G. Khrystova «Positive Human Rights Obligations of the State: Current Challenges»

Revew of the book by Ganna Khrystova «Positive Human Rights Obligations ofthe State: Current Challenges» (in Ukrainian) as a timely and thorough response to the resent human rights challenges facing the world at the beginning of the 21st century.