Right to Life and Capital Punishment in Transnational Judicial Dialogue

2021 ◽  
pp. 1-27
Author(s):  
Jimmy Chia-Shin Hsu
Keyword(s):  
Capital Punishment ◽  
The United States ◽  
Soviet Bloc ◽  
Right To Life ◽  
Value Choices ◽  
The Us ◽  
Direct Contrast ◽  
Analytical Argument ◽  
Per Se ◽  
The Right

Abstract In this article, I bring the constitutional jurisprudence of major East Asian courts into reconstructive dialogue with that of the United States, South Africa, and several former Soviet-bloc countries, on per se review of capital punishment. This fills in a gap in the literature, which has failed to reflect new developments in Asia. Besides analysing various review approaches, I extrapolate recurrent analytical issues and reconstruct dialogues among these court decisions. Moreover, I place the analysis in historical perspective by periodising the jurisprudential trajectory of the right to life. The contextualised reconstructive dialogues offer multilayered understanding of my central analytical argument: for any court that may conduct per se review of capital punishment in the future, the highly influential South African Makwanyane case does not settle the lesson. The transnational debate has been kept open by the Korean Constitutional Court's decisions, as well as retrospectively by the US cases of Furman and Gregg. This argument has two major points. First, the crucial part of the reasoning in Makwanyane, namely that capital punishment cannot be proven to pass the necessity test under the proportionality review, is analytically inconclusive. The Korean Constitutional Court's decision offers a direct contrast to this point. Second, the exercise of proportionality review of the Makwanyane Court does not attest to the neutrality and objectivity of proportionality review. Rather, what is really dispositive of the outcome are certain value choices inhering in per se review of capital punishment.

Dignity

2021 ◽  
pp. 107-160
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
Medical Treatment ◽  
Capital Punishment ◽  
Human Dignity ◽  
Fundamental Rights ◽  
Universal Declaration ◽  
Right To Life ◽  
Human Right ◽  
Per Se ◽  
The Right

Human dignity is not necessarily treated as a human right per se, but it may describe in particular several of the most fundamental rights that concern physical and psychological integrity: the right to life, the prohibition of torture and ill treatment, the prohibition of slavery and servitude, the right to liberty and security, and the recognition as a person before the law. Within these rubrics, some quite specific issues are addressed including the resort to capital punishment and other extreme penalties, the criminalisation of genocide, and the imposition of medical treatment. The references to dignity in the Universal Declaration of Human Rights appear to make up for the absence of any recognition of a supreme being,

KEBIJAKAN MODERASI PIDANA MATI

2017 ◽  
Vol 10 (2) ◽  
pp. 193
Author(s):  
Mei Susanto ◽  
Ajie Ramdan
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Capital Punishment ◽  
Criminal Code ◽  
Right To Life ◽  
Life Imprisonment ◽  
Research Results ◽  
Moderation Model ◽  
The Right

ABSTRAKPutusan Nomor 2-3/PUU-V/2007 selain menjadi dasar konstitusionalitas pidana mati, juga memberikan jalan tengah (moderasi) terhadap perdebatan antara kelompok yang ingin mempertahankan (retensionis) dan yang ingin menghapus (abolisionis) pidana mati. Permasalahan dalam penelitian ini adalah bagaimana kebijakan moderasi pidana mati dalam putusan a quo dikaitkan dengan teori pemidanaan dan hak asasi manusia dan bagaimana kebijakan moderasi pidana mati dalam RKUHP tahun 2015 dikaitkan dengan putusan a quo. Penelitian ini merupakan penelitian doktrinal, dengan menggunakan bahan hukum primer dan sekunder, berupa peraturan perundang-undangan, literatur, dan hasil-hasil penelitian yang relevan dengan objek penelitian. Penelitian menyimpulkan, pertama, putusan a quo yang memuat kebijakan moderasi pidana mati telah sesuai dengan teori pemidanaan khususnya teori integratif dan teori hak asasi manusia di Indonesia di mana hak hidup tetap dibatasi oleh kewajiban asasi yang diatur dengan undang-undang. Kedua, model kebijakan moderasi pidana mati dalam RKUHP tahun 2015 beberapa di antaranya telah mengakomodasi amanat putusan a quo, seperti penentuan pidana mati di luar pidana pokok, penundaan pidana mati, kemungkinan pengubahan pidana mati menjadi pidana seumur hidup atau penjara paling lama 20 tahun. Selain itu masih menimbulkan persoalan berkaitan dengan lembaga yang memberikan pengubahan pidana mati, persoalan grasi, lamanya penundaan pelaksanaan pidana mati, dan jenis pidana apa saja yang dapat diancamkan pidana mati.Kata kunci: kebijakan, KUHP, moderasi, pidana mati. ABSTRACTConstitutional Court’s Decision Number 2-3/PUU-V/2007, in addition to being the basis of the constitutionality of capital punishment, also provides a moderate way of arguing between retentionist groups and those wishing to abolish the death penalty (abolitionist). The problem in this research is how the moderation policy of capital punishment in aquo decision is associated with the theory of punishment and human rights and how the moderation policy of capital punishment in the draft Criminal Code of 2015 (RKUHP) is related with the a quo decision. This study is doctrinal, using primary and secondary legal materials, in the form of legislation, literature and research results that are relevant to the object of analysis. This study concludes, firstly, the aquo decision containing the moderation policy of capital punishment has been in accordance with the theory of punishment, specificallyy the integrative theory and the theory of human rights in Indonesia, in which the right to life remains limited by the fundamental obligations set forth in the law. Secondly, some of the modes of moderation model of capital punishment in RKUHP of 2015 have accommodated the mandate of aquo decision, such as the determination of capital punishment outside the main punishment, postponement of capital punishment, the possibility of converting capital punishment to life imprisonment or imprisonment of 20 years. In addition, it still raises issues regarding the institutions that provide for conversion of capital punishment, pardon matters, length of delay in the execution of capital punishment, and any types of crime punishable by capital punishment. Keywords: policy, criminal code, moderation, capital punishment.

The connection between the «color revolutions» and the strategic doctrines of the United States (late 20th century — 2014)

2021 ◽  
Author(s):  
Anna Igorevna Filimonova
Keyword(s):  
United States ◽  
20Th Century ◽  
American Foreign Policy ◽  
Use Of Force ◽  
The United States ◽  
Time Interval ◽  
Late 20Th Century ◽  
The Us ◽  
Color Revolutions ◽  
The Right

After the collapse of the USSR, fundamentally new phenomena appeared on the world arena, which became a watershed separating the bipolar order from the monopolar order associated with the establishment of the US global hegemony. Such phenomena were the events that are most often called «revolutions» in connection with the scale of the changes being made — «velvet revolutions» in the former Eastern Bloc, as well as revolutions of a different type, which ended in a change in the current regimes with such serious consequences that we are also talking about revolutionary transformations. These are technologies of «color revolutions» that allow organizing artificial and seemingly spontaneous mass protests leading to the removal of the legitimate government operating in the country and, in fact, to the seizure of power by a pro-American forces that ensure the Westernization of the country and the implementation of "neoliberal modernization", which essentially means the opening of national markets and the provision of natural resources for the undivided use of the Western factor (TNC and TNB). «Color revolutions» are inseparable from the strategic documents of the United States, in which, from the end of the 20th century, even before the collapse of the USSR, two main tendencies were clearly traced: the expansion of the right to unilateral use of force up to a preemptive strike, which is inextricably linked with the ideological justification of «missionary» American foreign policy, and the right to «assess» the internal state of affairs in countries and change it to a «democratic format», that is, «democratization». «Color revolutions», although they are not directly mentioned in strategic documents, but, being a «technical package of actions», straightforwardly follow from the right, assigned to itself by Washington, to unilateral use of force, which is gradually expanding from exclusively military actions to a comprehensive impact on an opponent country, i.e. essentially a hybrid war. Thus, the «color revolutions» clearly fit into the strategic concept of Washington on the use of force across the entire spectrum (conventional and unconventional war) under the pretext of «democratization». The article examines the period of registration and expansion of the US right to use force (which, according to the current international law, is a crime without a statute of limitations) in the time interval from the end of the twentieth century until 2014, filling semantic content about the need for «democratic transformations» of other states, with which the United States approached the key point of the events of the «Arab spring» and «color revolutions» in the post-Soviet space, the last and most ambitious of which was the «Euromaidan» in Ukraine in 2014. The article presents the material for the preparation of lectures and seminars in the framework of the training fields «International Relations» and «Political Science».

scholarly journals McDonald's — Much Maligned, But an Engine of Economic Development

2007 ◽  
Vol 7 (4) ◽  
pp. 1850123 ◽  
Author(s):  
Adrian E. Tschoegl
Keyword(s):  
United States ◽  
Economic Development ◽  
Fast Food ◽  
Food Industry ◽  
The United States ◽  
External Effects ◽  
Fast Food Industry ◽  
The Us ◽  
Per Se ◽  
Backward Linkages

Critics have excoriated the US fast-food industry in general, and McDonald's most particularly, both per se and as a symbol of the United States. However, examining McDonald's internationalization and development abroad suggests that McDonald's and the others of its ilk are sources of development for mid-range countries. McDonald's brings training in management, encourages entrepreneurship directly through franchises and indirectly through demonstration effects, creates backward linkages that develop local suppliers, fosters exports by their suppliers, and has positive external effects on productivity and standards of service, cleanliness, and quality in the host economies.

Where to limit the freedom of speech? Analysis in the context of the First Amendment to the US Constitution and the fighting words doctrine

2021 ◽  
Vol 37 (2) ◽  
pp. 239-256
Author(s):  
Karolina Palka
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
National Socialist ◽  
The Us ◽  
Us Constitution ◽  
Socialist Party Of America ◽  
The Right

This article is about the limits of the right to free speech. The first section provides a brief introduction to this topic, primarily in the context of the First Amendment to the U.S. Constitution. The second section describes the case of Chaplinsky v. New Hampshire, which was fundamental to the topic of this paper because the United States Supreme Court created the so-called "fighting words" doctrine based on it. In the next two sections, two court cases are presented that perfectly demonstrate the limits of the right to free speech in the United States: Snyder v. Phelps and Village of Skokie v. National Socialist Party of America. The fifth part shows the right to freedom of speech in the context of Polish civil, criminal, and constitutional law, as well as acts of international law binding on Poland. The last part is a short summary.

Forty years after Lau

2015 ◽  
Vol 39 (3) ◽  
pp. 227-244 ◽  
Author(s):  
M. Beatriz Arias ◽  
Terrence G. Wiley
Keyword(s):  
Human Rights ◽  
Minority Students ◽  
The United States ◽  
Language Minority ◽  
Historical Background ◽  
Language Minority Students ◽  
The Us ◽  
Linguistic Human Rights ◽  
The Right ◽  
Right Of Access

This article addresses the right to an education (including the right of access), and the right to an education in one’s native language, within the broader context of educational human rights, and language minority educational policy in the United States. Included in this discussion is an overview of educational and linguistic human rights as recognized in the US, followed by a review of the legal and historical background prior to the passage of the Lau v Nichols decision in 1974. The implications of demographic changes coupled with federal policy for language minority students forty years after Lau are discussed.

Particular generalisation: the Antarctic Treaty of 1959 in relation to the anti-nuclear movement

Polar Record ◽  
2008 ◽  
Vol 44 (2) ◽  
pp. 115-125 ◽  
Author(s):  
Jason Kendall Moore
Keyword(s):  
The United States ◽  
Strategic Orientation ◽  
Nuclear Movement ◽  
The Us ◽  
Antarctic Treaty ◽  
Nuclear Tests ◽  
The Right ◽  
The Cold War ◽  
Test Ban ◽  
The Antarctic

ABSTRACTThis article presents the US role in the formation of the Antarctic Treaty of 1959 in relation to the era's anti-nuclear movement. The purpose is two-fold: to highlight the strategic orientation of US Antarctic policy, suggesting that it was less enlightened than it is frequently portrayed; and to highlight the influence of the anti-nuclear movement upon the treaty's inclusion of a test ban which the United States initially opposed, hoping to reserve the right to conduct nuclear tests. The treaty is depicted as a particular generalisation: one aspect of the cold war that gains significance when scrutinised in relation to another that is much better-known.

International perspectives and practice differences

2017 ◽  
Author(s):  
Lindsay D. G. Thomson
Keyword(s):  
Health Services ◽  
Mental Disorder ◽  
Capital Punishment ◽  
Geographical Location ◽  
The United States ◽  
Mentally Disordered Offenders ◽  
Mentally Disordered ◽  
The World ◽  
Ethical Stance ◽  
The Right

Across the developed world, services for those with mental disorder in prison have been established but are seldom equivalent to those found in the community. Prisoners are largely the socio-economically deprived with high rates of mental disorder. They have often been victimized. Prisons are our new asylums. In the United States three times as many mentally ill people are in prison than in psychiatric hospital. It is essential that whatever our geographical location, we learn from other jurisdictions and other systems. Rates of imprisonment, organization of psychiatric services, and location of treatment of mentally disordered offenders all vary; and it is easy to fall into the trap of assuming that the system with which you are familiar is the right one. There are major differences across the world in terms of rates of imprisonment, place of treatment of acutely ill prisoners, and the structure of our mental health services in prisons. Those requiring hospital care should be transferred out of prison for this. Independence of health services from correctional services would promote the development of the former. One challenging issue for correctional psychiatry in some jurisdictions is capital punishment and psychiatrists ethically should have no role in executions and be aware of the ethical stance of the World Psychiatric Association. This chapter examines correctional psychiatry in an international context and explores similarities and differences in our practices, and the cultural, political, and economic background to these.

Does the United States Push Revolutions to Cuba? The Case of Grenada

1986 ◽  
Vol 28 (1) ◽  
pp. 1-34 ◽  
Author(s):  
Robert A. Pastor
Keyword(s):  
World War Ii ◽  
The United States ◽  
Soviet Bloc ◽  
World War ◽  
Government Officials ◽  
The Us ◽  
Us Government ◽  
Policy Analysts ◽  
The Caribbean ◽  
Political Model

One of the most difficult and frustrating challenges to US foreign policy in the post-World War II period has been coping with third world revolutions, particularly those in the Caribbean Basin. Whether the revolution has been in Cuba, Nicaragua, or Grenada, relations with the US have always deteriorated, and the revolutionary governments have moved closer to the Soviet bloc and toward a Communist political model. Both the deteriorating relationship and the increasingly belligerent posture of the US have conformed to a regular pattern; so too have the interpretations of the causes and consequences of the confrontation.US government officials and a few policy analysts tend to view the hostile attitudes and policies of the revolutionary governments as the cause of the problem.

America's health care dilemma: not a pretty sight

2007 ◽  
Vol 2 (3) ◽  
pp. 341-346
Author(s):  
DAVID WILSFORD
Keyword(s):  
Health Care ◽  
Local Politics ◽  
Max Weber ◽  
The United States ◽  
Policy Debate ◽  
Us Congress ◽  
Critical Junctures ◽  
The Us ◽  
The Uk ◽  
The Right

As the American right wing’s control of national (and local) politics implodes in the United States, there is the inevitable hope wafting in the air as policy specialists and other political activists on the other side of the divide anticipate capturing the US presidency at the end of 2008 to go with the center-left’s majorities won in the US Congress at the end of 2006. And so, health care reform is once again on the march! Alas, if Max Weber was wise to have observed that ideas run upon the tracks of interests, implying clearly that some good ideas die their death because they do not find the right track of interests, while some tracks of interests go nowhere for lack of the right idea, the health policy debate still provides a Technicolor demonstration that the mish and mash of this and that is not yet pointing the country in any particular direction, regardless of election outcomes in 2006 and 2008. Worse yet, in spite of the great sociologist Reinhard Bendix’s demonstration in his masterwork Kings orPeople (1978) that non-incremental transformations often occur at critical junctures of a nation’s history due to the diffusion effects of ideas from abroad, there is no evidence in the current (or past) American debate that the country has ever learned anything at all or thinks it has anything at all to learn from the way these problems are grappled with, and more successfully, elsewhere. (Oh, let’s just take Japan, France, Germany, Spain, Canada, the UK, and a handful of other countries as quick examples.)

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