Principle Of Non-discrimination Research Articles

Mandatory Disclosure Regime for Cross-Border Tax Planning Arrangements (DAC6): ECJ Confirms Compatibility with EU Law

Following a request to (partially) annul Belgium’s implementation of the DAC6 disclosure regime, the Belgian Constitutional Court submitted five questions to the ECJ in Belgian Association of Tax Lawyers and Others (Case C-623/22). In its decision of 29 July 2024, the ECJ found that there had been no violation of the principles of equal treatment, non-discrimination, legal certainty and legality, as well as the right to a fair trial and to respect for private life. Hence, it has been confirmed that DAC6 is compatible with EU law.

Relying on Human Rights Treaties to establish access to Same-sex registered Partnerships and Marriage – Confronting the Question of Cultural Sensitivities

This piece sets out to compare the stance of the Inter-American Court of Human Rights (IACtHR) under the American Convention on Human Rights (ACHR) with that of the European Court of Human Rights (ECtHR) (known as Strasbourg Court) adjudicating on the European Convention on Human Rights (ECHR) in relation to family rights of same-sex couples. Specifically, it looks at the stances taken by the two Courts towards same-sex relationship formalisations – registered partnerships and marriage – exploring their responses to the stances taken in the states within their jurisdiction towards such formalisations. This article confronts and compares the stances taken by the two Courts, and their underlying bases, when they encounter the varying stances on this controversial issue taken in the states in question, relating to cultural predilections. The article concludes that reliance on finding a consensus among the contracting states in this context has had a detrimental impact on the Strasbourg jurisprudence in terms of upholding the principle of non-discrimination, an impact that can be traced to discriminatory stances taken in a number of the ECHR-contracting states towards same-sex unions. It finds in contrast that the Inter-American Court of Human Rights has not accepted that finding such a consensus should affect its decisions in this context, and therefore it has not allowed cultural acceptance of homophobia to affect its stance. Keywords: ACHR; ECHR; ECtHR; IACtHR; Same-sex marriage; Strasbourg Court

Legal and medical aspects of the problem of postmortem donation in reproductive medicine

The reproductive system plays a crucial role in preserving the human race. The health of the reproductive system reflects not only the genetic viability of future generations but also overall health. It is also related to numerous human rights, including the right to life, liberty, personal integrity, health, education, and the principle of equality and non-discrimination. The state, on the other hand, has positive obligations to ensure the observance, protection, and implementation of reproductive rights. Everyone has the right to the highest attainable level of physical and mental health. Any individual or couple has the right to decide how many children to have, when to have them, and at what intervals, even if it involves postmortem reproduction. That is why it is necessary to pay attention to the need to ensure the rights of servicemen to biological paternity (motherhood), which is extremely important, especially in the context of martial law in Ukraine.Despite some controversial aspects arising in the context of postmortem donation in Ukraine, it is the duty of the legislator to adopt laws and create legal provisions that can properly regulate this area. In doing so, the principle of proportionality should be taken into account, which can help to achieve the necessary balance between personal integrity and respect for the body after death, on the one hand, and the right to family, on the other. It should be understood that the experience of states at war has highlighted the urgency of postmortem donation and the position of society on its legal integration along with other areas of social relations that are subject to regulation. Military service, given its daily risks, can certainly compromise fertility, particularly through genitourinary trauma that can be associated with combat, gonadotoxic exposure, and physical separation from a partner.In addition, the issue of disposing of oocytes in case of death or declaration of death of a servicewoman remains unaddressed. Implementation of postmortem donation in the event of the death of a female military service member is possible only through surrogate motherhood. However, the current legislation in this area does not regulate the possibility of in vitro fertilization after the death of one of the spouses and completely “bypasses” any derivative issues related to surrogate motherhood after death.

Mannréttindastefna Reykjavíkurborgar: Áskoranir, togstreita og tækifæri

Reykjavíkurborg tók ákveðið frumkvæði í jafnréttis- og mannréttindamálum á Íslandi þegar mannréttindastefna borgarinnar var samþykkt árið 2006. Stefnan ber sterkan svip af regluverki Evrópusambandsins þar sem áhersla er lögð á jafnrétti allra hópa og bann við mismunun. Innleiðing og framkvæmd mannréttindastefnunnar hefur reynst vandasamt ferli, ekki síst þar sem löggjöf um bann við mismunun hér á landi er ábótavant, nema á sviði kynjajafnréttis, og hefur það haft bein áhrif á stöðu málaflokksins. Spurningakönnun sem lögð var fyrir stjórnendur hjá Reykjavíkurborg um mannréttindastefnuna, fordóma og stöðu jaðarsettra hópa leiddi í ljós að í grunninn virðist mannréttindastefna Reykjavíkurborgar vera gott verkfæri. Stefnan er ágætlega þekkt meðal stjórnenda og þeir nýta hana sem tæki til breytinga, sér í lagi þegar kemur að mannaráðningum og starfsmannahaldi, en minna við úrhlutun fjármagns. Þrátt fyrir ásetning um að sinna jafnrétti allra og vinna gegn margþættri mismunun virðast sumir jaðarsettir hópar berskjaldaðri fyrir mismunun og jaðarsetningu en aðrir, sérstaklega innflytjendur, fatlað fólk og langveikt fólk.

Coral reef protection is fundamental to human rights.

The intensifying loss of coral reefs from global climate change and local stressors has seen international commitments targeted at conservation and repair, for example the Kunming-Montreal Global Biodiversity Framework. Fulfilling these targets requires decisions to be made on where, when, and how to act, ultimately dictating where limited resources will be deployed. Every choice on action or inaction toward our ocean has direct and indivisible consequences not only for the health of marine ecosystems but also for the health of humans, particularly those who directly depend on marine habitats, both culturally and economically. The well-being of the environment, humans, and animals is interlinked, co-dependent, and even co-produced, as has already been acknowledged by One Health approaches, which endorse a cross- and trans-disciplinary view to health. Coral reefs epitomie how tightly intertwined ecosystem health and the fate of the human and nonhuman communities that depend on them are. A field that thus far remains poorly considered is a human rights-based approach to coral reef protection. A human rights-based approach implements human rights obligations, including the recently affirmed right to a clean, healthy, and sustainable environment, while embedding principles of accountability, nondiscrimination, participation, and empowerment for local and Indigenous communities that ensure effectiveness and meaningful stakeholder engagement. Tying the protection of coral reef ecosystems to human rights emphasises the importance of healthy ecosystems to human well-being and thus the inevitable connection between nonhuman and human life. The general failure to consider coral reef protection through a human rights-based approach is a missed opportunity to expedite reef protection while simultaneously advancing climate justice for both humans and nonhumans.

PERLINDUNGAN HAK ANAK DALAM KONFLIK BERSENJATA DI KONGO BERDASARKAN CONVENTION ON THE RIGHTS OF THE CHILD 1989

The armed conflict, particularly in the Eastern Congo regions of North Kivu, South Kivu and Ituri, has led to many violations of children's rights. 14.9 million children have been most severely affected by this conflict. There are violations in terms of recruitment, use, detention, abduction, physical and sexual violence, attacks on schools and health facilities. The formulation of the problem of this article is what forms of violations of children's rights in the armed conflict that occurred in Congo based on the UNCRC 1989 and how efforts should be made by Congo in protecting children's rights based on the UNCRC 1989. This article uses normative research methods, descriptive-analytical in nature, drawing conclusions with deductive methods. The results of the research are the form of violations of children's rights committed by Congo, namely the right to survival, the right to protection, the right to growth and development and violating the principle of non-discrimination, the principle of state responsibility, the principle of the right to life and development to the fullest. The conclusion is that Congo should take the best measures to protect children's rights, especially in armed conflict, such as legislative, administrative, social and educational efforts to protect children's rights

EU approach towards violence against women and domestic violence – new EU Directive

European Union (EU) approach towards violence against women and domestic violence is analyzed through interconnection with principles of gender equality and nondiscrimination. The combination of gender-based discrimination and gender inequality with other forms of discrimination (economic, political, etc.) very often result in specific forms of violence against women. EU acceded the Istanbul Convention on preventing and combating violence against women and domestic violence of the Council of Europe in June 2023, which was spiritus movens for the adoption of the new EU Directive in this field. Achievements and shortcomings of this Directive are presented, as well as its significance within existing relevant EU primary and secondary legislation. New legislation criminalizes the following offences across the EU: female genital mutilation, forced marriage, non-consensual sharing of intimate images, cyber stalking, cyber harassment and cyber incitement to hatred or violence. However, criminalization of rape is lacking due to the absence of agreement of the constitutional element of sexual consent. Instead, prevention of rape and raising awareness of the importance of central role of consent are included. Taking into account the problem of secondary victimization, the Directive regulates rules on the measures of assistance and protection to victims that are to be secured by Member States, who are obliged to implement Directive in three years period. Directive gains special significance when taking into account relevant official data on violence against women in the EU. This Directive is to be considered the step forward in the direction of realization of gender equality de facto.

False Start on NIL: Public and Private Law Should Treat College Athletes Like Any Other Student

For most of its regulatory existence, the National Collegiate Athletic Association (“NCAA”) has preached the importance of integrating intercollegiate athletics into the campus culture and educational mission, insisting that athletes be an integral part of the student body. A core element of this creed was the amateurism principle—college athletes must not be paid or professionalized. To preserve and enforce the amateurism principle, the NCAA and its divisions promulgated a vast and complex regulatory scheme that paradoxically resulted in segregating, rather than integrating, athletes into campus life. While nonathlete students enjoy increasing autonomy to pursue expressive and economic activity, athletes are subject to paternalistic rules that restrain their lives on and off campus and deny them a share in the wealth generated by their athletic talents. In a watershed moment in the summer of 2021, this began to change. In June 2021, the Supreme Court in National Collegiate Athletic Association v. Alston affirmed that the NCAA had violated antitrust laws by capping the benefits that member institutions could offer to athletes when competing to recruit them to college teams. July 2021 brought the effective date of the first of many state laws preventing the NCAA from penalizing college athletes who monetize their name, image and likeness (“NIL”). In response, the NCAA amended its amateurism bylaws to permit all college athletes, regardless of where they attend school, to engage in NIL commercial activity consistent with state law and NCAA guidelines. What followed was a cycle of NCAA rulemaking to preserve the amateurism principle alternating with state legislative rejoinders to preserve in-state athletic programs’ recruiting advantage. The resulting morass of private and public NIL rules customized to the college athlete led to calls to federalize those regimes. Proposals for federal legislation would establish national standards and a centralized regulatory authority for college athlete NIL exploitation. No such bills have gained traction in Congress. This Article argues that both public and private law regimes singling out college athletes for customized regulation have it wrong. Instead, states, schools, and athletes would benefit from discarding specialized rules and reverting to laws of general application—in other words, let’s treat college athletes like any other student on campus. At least with respect to NIL, do away with the bifurcation of higher education into athletic and nonathletic fiefdoms and rent-seeking special treatment of the university’s relationship with athletes. Adopt a principle of nondiscrimination that deals with all college students the same way when they seek to benefit from and monetize their identities and publicity rights.

Evaluation of the Regional Head Age Limit Policy in Indonesia After the Supreme Court Decision Number 23 P / HUM / 2024

This study evaluates the regional head age limit policy in Indonesia following the Supreme Court Decision Number 23 P/HUM/2024 through a normative juridical analysis. The age limit policy, governed by Law No. 10 of 2016, aims to ensure capable leadership by imposing a minimum age requirement for candidates. However, the Supreme Court's decision raises questions about the policy's alignment with constitutional principles of equality, non-discrimination, and democratic participation. The analysis examines statutory regulations, legal principles, and comparative insights from other democratic countries to understand the policy's rationale and implications. Findings highlight the need for a balanced approach that ensures legal consistency and promotes inclusive, effective regional governance. Recommendations include lowering the minimum age requirement, implementing a flexible age range, and incorporating empirical evidence to refine the policy, ensuring it serves the principles of justice, democratic participation, and effective governance.

Entangled contestations: transnational dynamics of contesting liberal citizenship in South Asia

ABSTRACT This paper investigates contemporary transformations of citizenship in India, Sri Lanka, and Myanmar in their historical trajectories. More specifically, we focus on the contestation of liberal aspects of the respective citizenship regimes, in particular principles of non-discrimination on the basis of caste, race, gender, religion, or ethnic belonging as well as a high degree of legal certainty about one’s citizenship status. We advance two central arguments. Firstly, we argue that while often studied in isolation, the processes by which liberal citizenship is contested across the three countries bear remarkable similarities. We therefore develop a transnational comparative perspective to highlight the legal mechanisms and social logics by which citizenship regimes across the region are being transformed. Secondly, we argue that to capture these transformations, we need to complement the analyses of legislative changes with an investigation of socio-legal practices. This dual focus reveals how the interplay between seemingly innocent legislative changes and particular bureaucratic practices across all three countries produces zones of liminality, in which entire population groups experience increasingly precarious citizenship status. We theorise this production of liminal citizenship by focusing on the social lives of official documents and the proliferation of rules and regulations governing the respective citizenship regimes.

Compatibility of the DAC6 Obligation to Report Cross-Border Arrangements with Fundamental Rights: A Green Light from the Advocate General?

On 29 February 2024, Advocate General Emiliou of the Court of Justice of the European Union gave his Opinion in Belgian Association of Tax Lawyers and Others v. Premier ministre/Eerste Minister (Case C-623/22) on the compatibility of DAC6 with the principles of equality and non-discrimination, legality in criminal matters, legal certainty and the right to respect for private life. This contribution summarizes and criticizes the main elements of the Opinion, which will have major ramifications for the European tax transparency and tax cooperation regime if upheld by the Court of Justice of the European Union in its forthcoming DAC6 decision.

A tourist facility with a ban on children playing: The principle of non-discrimination and the statement of the Bulgarian court

Recently, both in Bulgaria and abroad, it is increasingly common to find accommodation, restaurants and entertainment facilities that advertise and offer a wide range of services. However, these are not intended for general consumers but only those who have reached maturity (excluding minors and the under-aged). According to press publications hotels and restaurants that pre-select their guests based on their age are mainly concentrated on the Bulgarian Black Sea coast and in the mountains or they specialize in spa and balneo procedures. It turns out that consumers find it easier to stay with a pet, albeit at an extra cost, than go on vacation with their teenage children. Such practices adopted by representatives of the tourism industry raise some questions of a moral, ethical and legal nature. The current article traces the development of a specific administrative and judicial proceeding initiated to establish the presence of discrimination against consumers in a tourist facility – a restaurant. An overview of the claims and arguments of the claimant is made as well as an analysis of the reasons and considerations given by the competent administrative and judicial authorities. The author’s opinion on the issue is expressed.

국제인권규범을 중심으로 한 젠더 기반 폭력(Gender-Based Violence)에 관한 연구

Gender-Based Violence against women is one of the most prevalent problems in most countries around the world. The issue of gender-based violence against women is related to the principle of constitutional equality, which guarantees equal rights for men and women, and the principle of non-discrimination, which prohibits discrimination on the basis of gender. In particular, violence against women can be considered gender-based violence because it is often caused by structural discrimination that goes beyond the usual criminal case. The case analyzed in this paper, P. and S. v. Poland, decided by the European Court of Human Rights in 2012, is significant because it is a relatively recent decision that addresses constitutional issues related to gender-based violence: the right to abortion, the prohibition of torture, the right to liberty, the right to respect for private and family life, the right to a fair-trial, the right to freedom of thought, conscience, and religion, and the principle of non-discrimination. The ECtHR found that the State's actions in relation to the applicant P. in this case fell short of the minimum measures required by Article 3 of the European Convention on Human Rights and that she had been subjected to inhuman and degrading treatment. It also found that the deprivation of liberty by separating her from her parents and placing her in an institution was incompatible with Article 5 § 1 of the ECHR. The ECtHR also found that information concerning the sensitive private life of P. and her mother S. had been disclosed and that this disclosure could not be legally justified, thus concluding that Poland had violated Article 8 of the ECHR, as alleged by the applicants. However, no finding was made as to whether P. and S.'s negative freedom of religion could have been substantially violated in this case. In conclusion, it can be seen that, despite various efforts, the obligations to protect women from violence in family and social life are not adequately fulfilled by law. This is not a problem unique to Poland. In many countries, there is still a gap between traditional values and laws. It is hoped that this ruling will bring about a shift in the perception of gender-based violence.

Dilemma between Economic Incentives and the Public Provision of Welfare: SER Trade-offs in China’s economic development and its healthcare reforms, 1979~2022

China experienced drastic economic development over the past decades, beginning with its Open-Door policy in the 1980s which led to its entrance into the world capitalist liberal trade economy. Throughout the process, both the public and private sectors underwent substantial structural reforms and transformations which led to changes in the citizens’ lives in relation to their access to social welfare and services. As a country that has ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR), China’s healthcare system will be examined in this paper under the extent to which it has fulfilled the state’s obligations discussed by the ICESCR regarding the principles of substantive equality and non-discrimination. A comparison will be made between rural and urban areas’ healthcare provisions, and the population of rural migrant workers who work in urban areas will be of special concern.

Students' Perspective on Freedom of Expression and Hate Speech in Albanian Universities

This article presents an analysis of the perspective of university students in Albania toward freedom of expression and hate speech within the academic environment. This study confidently investigates Albanian university students’ attitudes and perceptions towards freedom of expression, its significance in academic institutions, and its relationship with principles of equality and non-discrimination. Based on survey data collected from 622 participants, the study examines student’s attitudes toward the freedom of expression and hate speech. Study results strongly support previous research that highlights the significance of freedom of expression for young people in high educational institutions. The high level of participant agreement on the importance of freedom of expression in this study provides further evidence of the universal recognition of this fundamental right. The study contributes valuable insights to the discourse on freedom of expression and its implications for fostering inclusive and respectful academic environments in Albania. Received: 20 February 2024 / Accepted: 30 April 2024 / Published: 5 May 2024

Navigating the Complexities of International Economic Law: Implications for Global Trade and Investment

This paper explores the multifaceted landscape of international economic law and its profound implications for global trade and investment. Through a detailed examination of key legal instruments and treaties, including the World Trade Organization (WTO) agreements, Bilateral Investment Treaties (BITs), and Regional Trade Agreements (RTAs), the study elucidates how these frameworks shape the regulatory environment for international commerce. Central principles of non-discrimination, most-favored-nation (MFN) treatment, and national treatment are dissected to understand their practical application and impact on trade and investment flows. The role of international organizations in creating, enforcing, and shaping the norms and standards of global economic interaction is critically assessed. Furthermore, the paper delves into the legal challenges and strategic considerations businesses face in navigating international trade, investment protection, intellectual property rights, and the burgeoning digital economy. By examining case studies and practical implementations, the study highlights the dynamic interaction between legal frameworks and business strategy in the context of digital trade, data protection, and the use of digital currencies and blockchain in trade finance. This comprehensive analysis aims to provide insights into the evolving landscape of international economic law and offer strategic guidance for businesses and policymakers navigating these complexities.

Marriage and the Obligations Arising from It

Marriage, as an institution of law, is based on the moral and legal equality of spouses, on the feeling of mutual love, respect and understanding, as the basis of family unity. Healthy family and marital relationships contribute to the elimination of gender stereotypes. It all starts in the family and is transmitted throughout society. For this reason, rightly, if we want to know how much a society respects the principles of non-discrimination and gender equality, it is very effective to carry out this analysis also for the family. Both marriage and the family, as very important institutions, enjoy the special protection of the state. The general principles that pervade these institution s are: i) the principle of reciprocity of rights and obligations ii) the principle of equality in rights and obligations iii) putting the interests first: of children, of marriage, of the family iv) reciprocity: in loyalty, for moral help, for material help, for cooperation in the interests of the family and coexistence. Marriage is a legal and social coexistence between two different people whose responsibilities and rights are defined by law and social traditions. Couples marry for a variety of reasons, including love, cohabitation, and sometimes economic or social reasons. Equality between spouses is accepted as a rule social concept and as a principle of family law. The principle of equality and non-discrimination as well as that of violence in marital and family matters is one of the main points in the paper. Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024

Restriction on Foreigners Employment Violates the Principles of Equality and Non-discrimination From the Perspective of Thailand Foreigners Working Management Emergency Decree

Restriction on Foreigners Employment Violates the Principles of Equality and Non-discrimination From the Perspective of Thailand Foreigners Working Management Emergency Decree

THE PRINCIPLE OF EQUALITY AND COUNTERACTION TO DISCRIMINATION IN THE LEGISLATION OF FOREIGN COUNTRIES

The article reveals the principle of non-discrimination, the concept of equality, the principle of equality in national legislation and in international Conventions on racial discrimination. In addition, the experience of countries to eliminate discrimination in the main law is analyzed. The experience of countries such as Germany, Poland, Japan, Croatia and Italy is considered.

Legal Protection for Neglected Children Based on Regional Regulation of Bali Province

<p>The aims of this research are to determine legal protection for neglected children based on the regional regulations of Bali Province. The problem in this study is how legal protection for neglected children in the province of Bali is based on the Regional Regulations of Bali Province Number 6 of 2014. This research uses a normative legal method by taking a statutory approach. The sources of legal materials used are primary and secondary, which are reviewed using literature study techniques and analyzed descriptively and qualitatively. The result can be seen that legal protection for neglected children based on Article 2 of Regulation Number 6 of 2014 of Bali Province concerning child protection states that every child has the right to be able to live, grow, develop, and participate appropriately following human dignity. Preventive protection is also emphasized, where the state, government, local government, community, family, and parents or guardians are obliged and entirely responsible for child protection. This protection is based on the principles of child protection, namely the principle of non-discrimination, the principle of the child's best interests, the right to live, grow, and develop, and the principle of children's participation.</p>