Rights-based Analysis Research Articles

Social Constructivist and Rights-Based Analysis of Global Governance of Statelessness: The Case of the Rohingya Crisis

Social Constructivist and Rights-Based Analysis of Global Governance of Statelessness: The Case of the Rohingya Crisis

Intentional Killing or A Right to Bodily Integrity: Can We Bridge the Moral Languages of Abortion?

This essay examines the differences that result from two different ways of framing abortion. The first way is intention based; it evaluates the act primarily on the basis of the purpose of the agent in acting. On this view, abortion is best described as intentional killing of the innocent. The second way is rights based; it evaluates an act on the basis of whether or not it occurs within the agent’s protected sphere of activity. On this view, abortion is best viewed as a legitimate protection of a woman’s bodily integrity. I explore how these different moral frames engage different aspects of the religious imagination. Finally, I suggest ways in which the chasm between intention-based analysis and rights-based analysis might be bridged.

Children’s differing experiences of environmental insecurity and its impacts via the lens of a human rights-based analysis

Children’s differing experiences of environmental insecurity and its impacts via the lens of a human rights-based analysis

Abandoning children to their participation? A rights-based analysis of the strong participation ethos in democratic (open) schools’ disciplinary procedures

Democratic (open) schools are founded on an ethos that sanctifies human rights and an egalitarian relationship between children and adults. Accordingly, students participate in all types of decisions, including those relating to disciplining their peers. This study explored the disciplinary procedures in three democratic schools, all operating participatory disciplinary committees in which students and educators serve as adjudicators. Drawing on interviews with students, parents, and teachers, the findings identified three types of conflicts, describing collective participation rights as potentially impinging on individual students’ rights to privacy, protection, and participation. The schools mitigated some of these conflicts by modifying the disciplinary protocol and providing students with guidance. The conclusions account for the ramifications of an uncritical whole-school approach to participation.

Correction to: Broken promises: a rights-based analysis of marginalised livelihoods and experiences of food insecurity in large-scale land investments in Tanzania

Correction to: Broken promises: a rights-based analysis of marginalised livelihoods and experiences of food insecurity in large-scale land investments in Tanzania

Broken promises: a rights-based analysis of marginalised livelihoods and experiences of food insecurity in large-scale land investments in Tanzania

Proponents of large-scale land investments (LSLI) still promote them as a development opportunity, which can lead, among other benefits, to job creation and enhanced food security for local communities. However, there is increasing evidence that these investments often deprive affected communities of their access to land, with multiple negative impacts on livelihoods, food security and on the environment. This paper relies on empirical data to present an analysis of LSLI and food (in)security – crucially at the level of individuals in two villages in the Ruvuma region, Tanzania, over 10 years after the acquisition of village land within the Southern African Growth Corridor of Tanzania (SAGCOT). We introduce an innovative framework that permits an integration of a rights-based approach with the Sustainable Livelihoods Framework to explore smallholders’ livelihoods and experiences of food insecurity. Our paper demonstrates how this integration, along with attention we have given to the FAO’s PANTHER principles, adds the missing yet crucial dimension of accountability on the part of national governments as duty bearers. Our findings show that in the case of these two villages, the human rights principles of participation, accountability, transparency and empowerment are severely undermined, with women bearing the brunt in all these domains. This overall state of affairs is, we argue, due to inadequate monitoring and evaluation of LSLI processes themselves and low levels of commitment on the part of institutions in Tanzania to monitor the promises made by investors. This in turn demonstrates an accountability deficit on the part of duty-bearers within LSLIs, and limited capacity of affected community members to claim their rights. Individual food insecurity experience in the two communities correlates, among other characteristics, with lack of land ownership, employment and income-generating activities. The rights-based livelihoods framework applied in this study points to serious deficiencies in the LSLI model as presently endorsed in SAGCOT, and emphasises the fact that access to land in Tanzania is a precondition for the realisation of the right to adequate food and thus a critical requirement for achieving and maintaining food and nutrition security. We conclude by arguing that progressive coalitions within and beyond national states must devise policies and institutions that empower individuals and civil society actors to make demands on their governments to respect, protect and fulfil their obligations regarding the legally enforceable right to food.

A Rights-Based Approach to the Rescission of Deferred Action for Childhood Arrivals

This study conducted a rights-based policy analysis to assess the rescission of Deferred Action for Childhood Arrivals (DACA), which provides a reprieve from deportation to young people who came to the United States as children. Over 650,000 DACA recipients are threatened by potential risks of DACA rescission, including losing eligibility to stay and work, and limited participation in social, economic, civil, and political activities. The findings of this study indicate that DACA rescission would violate many articles of international human rights treaties. In conclusion, this study urges to establish policy improvement to advocate for immigrants' human rights in the U.S.

Scheduling medicines as controlled substances: addressing normative and democratic gaps through human rights-based analysis

Recent years have seen contentious debate about efforts to schedule medicines such as ketamine and tramadol under the international drug control conventions. Proponents argue that misuse poses a significant risk to public health and that scheduling would help address these problems. However, scheduling of medicines can negatively affect their availability, accessibility and affordability for medical purposes, with serious health consequences for patients, especially in low and middle-income countries. The current process for scheduling medicines under the international drug control conventions does not provide sufficient normative standards through which balanced decisions may be reached. It is undemocratic in its structure and opaque in its reasoning. In this article, we argue that such decisions represent de facto limitations on the right to health and may engage the principle of non-retrogression. Using the examples of ketamine and tramadol, we propose that standard legal tests in international human rights law can help to address the normative and democratic deficits in the system and produce more rigorous, fairer and more transparent decisions.

The Trauma of Trump's Family Separation and Child Detention Actions: A Children's Rights Perspective

In April 2018, the Trump Administration publicly announced a new zero-tolerance policy for illegal entries at the U.S. border. This action kicked off a wave of family separations that made headlines and drew criticism from around the globe. Despite resounding condemnation of these actions, the Trump Administration defended its family separation policy as a “tough deterrent.” At least 2,600 families were torn apart in the ensuing months. And as of 2019, reports—from both government and others—have detailed widespread abuses of and substandard conditions for children held in detention centers. The consequences of these separations and the maltreatment of children in detention are pronounced. The trauma that children have endured has potentially lifelong ramifications. This Article provides an in-depth, children’s rights-based analysis of the Trump Administration’s family separation and child detention policies and actions. A children’s rights perspective has several critical insights. First, children’s rights are rooted in a legal mandate. Second, examining the Trump Administration’s actions from a children’s rights perspective reveals the breadth of rights violations occurring. This more nuanced understanding of the events can help in devising appropriate strategies to respond to such violations. Third, a children’s rights perspective helps place the Trump Administration’s actions in their historical context to better understand the gravity of these actions. Children’s rights law is as close to universally accepted as any human rights law, and thus any departures from such widely embraced standards are particularly revealing. Finally, the authors discuss the implications of this children’s rights assessment, urging action on several fronts to address this harm and prevent violations of children’s rights in the future.

The Church of England and Same-Sex Marriage: Beyond a Rights-Based Analysis

Some scholars, faced with the apparent conflict between the Church of England's teaching on marriage and the idea of equal marriage embraced by the Marriage (Same Sex Couples) Act 2013, have focused on the implications of that Act for the constitutional relationship between Church, State and nation. More frequently, noting the position of the Church of England under that Act, academics have critiqued the legislation as an exercise in balancing competing human rights. This article by contrast, leaving behind a tendency to treat religion as a monolithic ‘other’, and leaving behind the neat binaries of rights-based analyses, interrogates the internal agonies of the Church of England as it has striven to negotiate an institutional response to the secular legalisation of same-sex marriage. It explores the struggles of the Church to do so in a manner which holds in balance a wide array of doctrinal positions and the demands of mission, pastoral care and the continued apostolic identity of the Church of England.

Equality of Opportunities and Quota System in the Government Services of Bangladesh: A Rights-based Analysis

The research is analyzing the effectiveness of existing Quota System in Public Service of Bangladesh to ensure Equality of Opportunity. I have divided my whole Research Monograph into five Chapters. In the very first Chapter, I have introduced the aims and objectives, scope, limitation and the methodology of the study. Then I have tried to reveal The Quota System in Bangladesh through discussing the evolution of Quota System and present status, implementing process and effect of the quota system. Then a brief idea has given about Equality of Opportunity and ‘Rights-based Model’ in the following chapters by mentioning their nature and effect on society, necessity and obligation of implementing the principles arising out of this concept. Then I have tried to examine the existing Quota System in Government Services of Bangladesh whether it is compatible with the principles of‘ Rights-based Model’ and capable of ensuring Equality of Opportunity. Finally, there are some recommendations to ensure equality of opportunity in Public Service through amending existing quota System.

Equality of Opportunities and Quota System in the Government Services of Bangladesh: A Rights-based Analysis

The research is analyzing the effectiveness of existing Quota System in Public Service of Bangladesh to ensure Equality of Opportunity. I have divided my whole Research Monograph into five Chapters. In the very first Chapter, I have introduced the aims and objectives, scope, limitation and the methodology of the study. Then I have tried to reveal The Quota System in Bangladesh through discussing the evolution of Quota System and present status, implementing process and effect of the quota system. Then a brief idea has given about Equality of Opportunity and ‘Rights-based Model’ in the following chapters by mentioning their nature and effect on society, necessity and obligation of implementing the principles arising out of this concept. Then I have tried to examine the existing Quota System in Government Services of Bangladesh whether it is compatible with the principles of‘ Rights-based Model’ and capable of ensuring Equality of Opportunity. Finally, there are some recommendations to ensure equality of opportunity in Public Service through amending existing quota System.

Bovine Tuberculosis and Badger Culling in England: An Animal Rights-Based Analysis of Policy Options

Bovine tuberculosis (bovine TB) is an important and controversial animal health policy issue in England, which impacts humans, cattle and badgers. The government policy of badger culling has led to widespread opposition, in part due to the conclusions of a large field trial recommending against culling, and in part because badgers are a cherished wildlife species. Animal rights (AR) theorists argue that sentient nonhumans should be accorded fundamental rights against killing and suffering. In bovine TB policy, however, pro-culling actors claim that badgers must be culled to avoid the slaughter of cattle. The first part of the paper compares AR theories of Regan, Francione, Cochrane, Garner and Donaldson and Kymlicka in the context of wildlife species. The second part of the paper applies these AR theories to bovine TB and badger control. AR theories are applied to badger control policy options of (1) do nothing, (2) badger culling, and (3) badger vaccination. We conclude that AR theories are strongly opposed to badger culling. In general, culling is prohibited due to a badger’s right to life and its rights against suffering. The AR theories support a do-nothing, i.e. non-culling, non-vaccination approach to badger control. In the case of the AR theories of Regan and Francione, this is based on abolitionist positions with respect to farming. For Cochrane, Garner, and Donaldson and Kymlicka, the do-nothing policy option is preferred because badger vaccination causes a degree of suffering which generally is not for the individual’s benefit.

The right to education for young people excluded from mainstream in a divided society

This paper offers a rights-based analysis of the equity of educational experience allocated to young people excluded from school in Northern Ireland. Using Tomaševski’s ‘4As scheme’ as a conceptual guide, the availability, accessibility, acceptability and adaptability of alternative education provision is examined. The article begins with a brief overview of the contextual landscape within which the sector operates, alluding to the definitional and procedural difficulties that have hindered the delivery of equitable alternative education services to date, before an examination of the current legal architecture within which the right to education may be given further realisation is detailed. The latter part of the article considers the extent to which the organisation, management and delivery of the EOTAS sector is rights-compliant, before concluding that the right to education, as it stands under domestic and international law, does not extend far enough to ensure and protect the educational entitlements of children excluded from school.

Living with HIV and Advocating for Health Rights in Urban Zimbabwe

ABSTRACTThis paper explores intersections between the HIV and human rights in Zimbabwe, a country with a high HIV prevalence and a contested human rights record. In-depth, semi-structured interviews conducted with 60 people living in poor communities in the capital, Harare, are used to explore their lived experiences of HIV. The participants’ responses indicate the essential role that human rights play in successfully living and surviving with HIV. We identify health-rights standards and use a rights-based analysis to discuss a range of health-related concerns, in particular, those related to treatment and the social mediation of disadvantage. The social determinants of health and structural violence conceptually frame our understanding of the participants’ accounts of successes and failures in relation to poverty reduction, gendered disadvantage, discrimination and public health and illustrate how the individual and collective agency generated by rights-based empowerment can improve health and well-being in difficult political and social environments.

Chronic obstructive pulmonary disease mobile care: A participant-focussed and human rights-based evaluation

To reduce healthcare costs associated with chronic obstructive pulmonary disease (COPD) and vacate hospital beds without compromising patient satisfaction with healthcare, alternatives for hospital treatment have been developed; however, few studies have qualitatively investigated patients’ experiences of these alternatives. This study aimed, first, to explore patients’ experiences of Sweden’s first COPD mobile care programme through semi-structured interviews with twelve patients, and, second, to evaluate if a human rights-based analysis could provide additional information. Data were, first, analysed using latent content analysis, resulting in three themes: security (effective follow-up, positive encounters), availability (convenience), and suggestions for improvement (increased amount of personnel, longer enrolment period, continued follow-up upon discharge from the programme). Security and availability contributed to high acceptability of and satisfaction with the programme; COPD mobile care can, thus, constitute an acceptable alternative to inpatient care for COPD patients. Findings were then further analysed using the AAAQ framework (availability, accessibility, acceptability, and quality) to determine how the COPD mobile care programme corresponds to the Right to health. This human rights-based analysis enabled the uncovering of certain groups being excluded from the programme, thereby generating valuable information for improving the programme by ensuring equal access and care for all COPD patients.

The Right to Education in Australia: A Case Study of Higher Education Policy

Economic, Social and Cultural Rights (ESCRs), along with other human rights, have limited formal protection in the Australian domestic context despite apparent support for the ends that these rights promote. This paper considers the scope and application of the right to education in the International Covenant on Economic, Social and Cultural Rights (ICESCR) to higher education policy. To do so, it uses a framework that considers the structure, process and outcomes of policy aimed at giving effect to the right to education, as it relates to recent announcements about Government policy. The paper concludes that a rights-based analysis has much to offer the debate on higher education reform and formal mechanisms should be considered for adopting this framework into the policy process.

A property rights-based analysis of the illegal logging for fuelwood in Kosovo

The increased demand for fuelwood may have the side-effect of unsustainable use of forest resource. The case of Kosovo fuelwood production is of a peculiar relevance to studying the drivers of the unsustainable patterns of forest biomass use in a post-war and poor economic context. The domestic market demand for fuelwood in Kosovo is estimated at more than 1.5 hm3, while the legal supply, including imports, is slightly higher than 0.3 hm3. Illegal logging for satisfying Kosovo population fuelwood needs is therefore widespread. The annual illegal fuelwood harvesting represents a market of up to 21.6 million euro and is done mostly by well organised groups of individuals, with market-oriented behaviour, acting rather in State than in private forests. After identifying the drivers of illegal logging for fuelwood, the paper provides an analysis of fuelwood extraction in relation with property rights distribution, structured along two lines: a) which was the evolution of the management and exclusion rights over the forest resource during the latest decades; b) which are the current enforcement mechanisms of the property rights and how are they performing. The paper describes a decades-long history of mismatching economic property rights arrangements. Thus, the dispute between the central agency and municipalities in performing exclusion rights on timber extraction definitely weakened the Kosovo system of law enforcement. Currently, the enforcement mechanism proved to be unhelpful in controlling illegal logging. As result, most of the Kosovo fuelwood production is based on an de facto open-access regime.

Redefining Sovereignty for the 21st Century

In confronting the transformative nature of international institutions and global norms, this paper will address implications for sovereignty in the 21st century. Driven by transformative global human rights and humanitarian norms, multipolar alignment of power, authority and legitimacy, and the increasing influence of non-state actors, sovereignty has taken on characteristics previously unimagined, and is likely to align with continuing developments in human rights and democratic governance.Using rights-based analysis, emerging notions of sovereignty will be explored with particular reference to the Responsibility to Protect (R2P) norm. The effects of interdependency on sovereignty will be examined, in addition to the changing nature of the relationship between state and non-state actors. Furthermore, the relationship between the Global North and South will be explored to demonstrate hierarchies of power and claims to legitimacy in the inter-state system. As modern conflicts take on increasingly irregular, asymmetric, and intra-state characteristics, claims to absolute authority by states have begun to be formally subordinated by international human rights and humanitarian norms. Conceived as a liberal compromise between absolute mutual non-interference and the international society’s obligation to protect civilians from mass atrocities, the role of the Responsibility to Protect (R2P) norm will be assessed as a major development in the emergence of post-national sovereignty.

Damage in the English Law of Negligence

AbstractAlthough foundational to the tort law of both common law and civil law countries, the concept of damage has been the object of surprisingly little analysis by academics in the common law world. The aim of this article is to redress the balance somewhat by looking more closely at the meaning of damage in the English law of negligence. The first part of the article consists of general observations on the damage concept. It is argued that it is impossible to devise a meaningful general definition of damage, that damage is not the same thing as loss, and that the damage concept is compatible with rights-based analysis of negligence law. The remainder of the article is devoted to consideration of the two most common forms of damage, personal injury and physical damage to property. It is argued that a central idea underpinning both these routine forms of damage is that of ‘impairment’ and that both forms of damage are subject to de minimis principles. As regards personal injury, particular attention is paid to the forms of psychiatric injury which ground a negligence claim. Finally, it is argued that for property to be damaged there must be a physical change in the property which impairs its utility or value, and that merely to incapacitate property is not to damage it. Although the primary focus is on English law (and the common law more generally), some comparative observations are made.