Sovereign Debt and Self-Determination

2018 ◽  
pp. 267-283
Author(s):  
Ilias Bantekas
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Sovereign Debt ◽  
External Pressure ◽  
The State ◽  
Self Determination ◽  
Policy Decisions ◽  
Effective Policy ◽  
Fundamental Needs

In this chapter we make use of the word ‘effective’ in order to test whether a particular action, contractual clause or other measures produce an outcome that is otherwise offensive to self-determination. This is not always easy because economic self-determination is sparse in the human rights literature. In this chapter we put forward the proposition that a state is sovereign where it is effectively empowered, without pressure or coercion, to make all policy decisions required to run the state machinery and satisfy the fundamental needs of all its people (at the very least), both individual and collective. A state’s effective policy and decision-making power is effectively curtailed where: a) it has been substituted in these functions by a third state or an organ of that state; b) where it is prevented from taking a particular action, such as unilateral default; c) where it is forced to violate fundamental domestic laws, including its constitution or the result of a referendum or; d) where external pressure is exerted against its government and institutions with the aim of creating volatility and uncertainty concerning its finances so that it succumbs to such pressure.

scholarly journals The contractualization of fiscal and parliamentary sovereignty: Towards a private international finance architecture?

2021 ◽  
pp. 1-21
Author(s):  
Ilias Bantekas
Keyword(s):  
Decision Making ◽  
International Finance ◽  
External Pressure ◽  
The State ◽  
Policy Decisions ◽  
Parliamentary Sovereignty ◽  
Effective Policy ◽  
Fundamental Needs

Abstract A state should be deemed to be enjoying fiscal sovereignty where it is effectively empowered, without pressure or coercion, to make all policy decisions required to run the state machinery and satisfy the fundamental needs of its people (at the very least), both individual and collective. A state’s effective policy and decision-making power is effectively curtailed where: (1) it has been substituted in these functions by a third state or an organ of that state; (2) it is prevented from taking a particular action, such as unilateral default; (3) it is forced to violate fundamental domestic laws, including its constitution or the result of a referendum; or (4) external pressure is exerted against its government and institutions, with the aim of creating volatility and uncertainty concerning its finances so it succumbs to such pressure.

Autonomy and Paternalism

1982 ◽  
Vol 8 ◽  
pp. 47-66 ◽  
Author(s):  
Robert Young
Keyword(s):  
Decision Making ◽  
The State ◽  
Self Determination ◽  
Adult Individual ◽  
Voluntary Consent ◽  
Human Autonomy

Paternalism has generally been thought of as forcible or coercive interference with a person's liberty of action which is (believed to be) justified because it will prevent harm to that person's welfare interests or the like. Opposition to paternalistic interference with adults, whether it involves the intervention of the state (legal paternalism) or another adult individual, has usually been based on a concern to preserve human autonomy or self-determination. More strictly it is opposition to so-called ‘strong’ paternalism - interventions to protect or benefit a person despite the person's informed voluntary consent to the contrary- which has been grounded on such a commitment to self-determination. ‘Weak’ paternalism involves interference where there is (or is believed to be) a defect in the decision-making capacities of the person interfered with (or to ascertain whether the person's behaviour is fully reflective). It is claimed to be justifiable insofar as consent to the interference would be forthcoming were these capacities restored.

From Individual to Collective Consent: The Case of Indigenous Peoples and undrip

2019 ◽  
Vol 27 (2) ◽  
pp. 251-269
Author(s):  
Richard Healey
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
The State ◽  
Self Determination ◽  
Sexual Ethics ◽  
The Third ◽  
Collective Decisions

Much of the debate around requirements for the free, prior, and informed consent of indigenous peoples has focused on enabling indigenous communities to participate in various forms of democratic decision-making alongside the state and other actors. Against this backdrop, this article sets out to defend three claims. The first two of these claims are conceptual in nature: (i) Giving (collective) consent and participating in the making of (collective) decisions are distinct activities; (ii) Despite some scepticism, there is a coherent conception of collective consent available to us, continuous with the notion of individual consent familiar from discussions in medical and sexual ethics. The third claim is normative: (iii) Participants in debates about free, prior, and informed consent must keep this distinction in view. That is because a group’s ability to give or withhold consent, and not only participate in making decisions, will play an important role in realising that collectives’ right to self-determination.

scholarly journals Public Councils as a Legal Form of Partnership between the State and Its Citizens

2021 ◽  
Vol 9 (1) ◽  
pp. 96-117
Author(s):  
Pavlo Krainii
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Local Governments ◽  
Legal Status ◽  
Good Governance ◽  
Communicative Action ◽  
The State ◽  
Legal Form ◽  
Theoretical Concepts ◽  
Legal Forms

Today, the existence of every society and every state is marked with the presence of generally accepted phenomena that radically distinguish the legal status of an individual from his ancestors, who lived hundreds or even thousands of years ago. These phenomena are: democracy, legal society, human rights, good governance, participatory democracy, etc. The study of legal relations between an individual or a group of individuals and the state, represented by the system of government in one form or another, has been carried out by a large number of well-known legal scholars, sociologists, political scientists, and economists, all of whom offered numerous theoretical concepts, represented different scientific schools, and worked in various fields of research. The basic issue they have been trying to solve both in the past and at present is how an individual citizen or a group of individuals can influence the decision-making processes of public authorities that affect the interests of each of them. It turned out that the institutions we are aware of (like those of political parties, public organizations, unions) are not the only legal forms of association of the country citizens who seek to exercise public power and represent the interests of certain groups of their compatriots. The active changes that took place in the world after the Second World War, as well as the emergence of the third generation of human rights were a logical continuation of the growing influence of liberal ideas and views, which proved the existence of new scientific alternatives, ideas and concepts for developing the theory of deliberative democracy. The latter’s main objective was the idea of citizens’ active involvement in decision-making by the authorities and local governments, which consequently led to the phenomenon of public-private partnership. The article under discussion contains a legal analysis of the institution of public councils as one of the legal forms of such interaction through the theory of communicative action. At the same time, the paper will contain an attempt to analyze the current Ukrainian legislation that determines and regulates the legal status of public councils. This will enable to draw conclusions about the level of involvement of citizens in the decision-making process. In addition, the article will lay particular emphasis on a study of the already established and existing public councils in Ukraine, as well as will identify the positive and negative aspects of their activities, which will help to work out the problematic aspects of their legal status and offer practical ways to eliminate them.

The State and Genocide

2012 ◽  
Author(s):  
Anton Weiss‐Wendt
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Political Parties ◽  
The State ◽  
Modern State ◽  
Decision Making Process ◽  
Mass Violence ◽  
Original Source ◽  
Chain Of Command ◽  
State Agents

This article explores the connection between the state and genocide. It argues that no form of mass violence, and least of all genocide, erupts spontaneously. It requires premeditation, usually by a government with a record of gross human rights violations. Indeed, the discussion contends that genocide is intricately linked to the idea of the modern state, despite a body of scholarship that questions that link. Non-state agents such as radical political parties or armed militias are usually incorporated into the governing structure and therefore rarely perform on their own. The state may deliberately use them as proxies to obscure the decision-making process and thus to shift responsibility for the crimes committed. Even though the ruling body may not always emphasize state interests in genocide, the painstaking reconstruction of the chain of command, where possible, inevitably points to the upper echelons of power as the original source of mass violence.

Sovereign Debt and Human Rights: An Introduction

2018 ◽  
pp. 1-10
Author(s):  
Ilias Bantekas ◽  
Cephas Lumina
Keyword(s):  
Human Rights ◽  
Subject Matter ◽  
Sovereign Debt ◽  
The State ◽  
Direct Relevance

This chapter attempts a synthesis of all various chapters in the book and attempts to show the links between sovereign debt and human rights. It identifies these links by reference to particular rights (socio-economic as well as civil and political) as well as by subject matter. The chapter, in addition, introduces in brief all the chapters of the book, demonstrating that debt has a direct relevance upon all the functions of the state and impacts directly upon all human rights.

scholarly journals The 2013 Elections in Zimbabwe: End of an Era for Human Rights Discourse?

2013 ◽  
Vol 48 (3) ◽  
pp. 99-110 ◽  
Author(s):  
Cornelias Ncube
Keyword(s):  
Human Rights ◽  
The State ◽  
Self Determination ◽  
Coalition Government ◽  
Political Rights ◽  
Strained State ◽  
Civil And Political Rights ◽  
Rights Discourse ◽  
The Right ◽  
Human Rights Discourse

This paper examines the implications of Zimbabwe's 2013 harmonised elections on the opposition's continued deployment of the rights-based discourse to make moral and political claims against and demands of the state. Since 2000, two polarising strands of the human rights discourse −1) the right to self-determination and 2) civil and political rights – were deployed by the state and the opposition, respectively, in order to challenge extant relations and structures of power. The acutely strained state–society relations in post-2000 Zimbabwe emanated from human rights violations by the state as it responded to challenges to its political power and legitimacy. However, the relative improvement in the human rights situation in the country since the 2009 coalition government came into office, and during and since the recently concluded peaceful 2013 elections – the flawed electoral process itself notwithstanding – suggests a need for alternative new ways to make moral and political demands of the state in the future.

THE FORGOTTEN FREEDOM: FREEDOM FROM FEAR

2010 ◽  
Vol 59 (3) ◽  
pp. 543-570 ◽  
Author(s):  
James Spigelman
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Case Law ◽  
The State ◽  
Physical Security ◽  
Legal Thought ◽  
Human Rights Treaties ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
Difficult Issue

AbstractFreedom from fear, expressly recognized in the foundational human rights treaties, has been forgotten in human rights discourse. Fear can have profound behavioural impacts. Without recognition of the importance of freedom from fear, the fulfilment of many human rights is compromised, particularly physical security. Politico-legal thought, from Montesquieu and Blackstone, has long identified the significance of security of the person and the tension between liberty and security. Comparative exploration of contemporary case law reveals disparate approaches to the recognition of security of the person as an individual right which the State is obliged to protect. Increasing the salience of security of the person and the dimension of freedom from fear in human rights decision making raises the difficult issue of balancing conflicting rights.

Enhancing the Participation of Indigenous Peoples at the Intergovernmental Level to Strengthen Self-Determination: Lessons from the Arctic

2018 ◽  
Vol 87 (1) ◽  
pp. 26-55
Author(s):  
Dorothée Cambou
Keyword(s):  
Decision Making ◽  
Indigenous Peoples ◽  
State Level ◽  
The State ◽  
Regional Level ◽  
Self Determination ◽  
The Arctic ◽  
Policy Goal ◽  
The Future ◽  
The Right

With a focus on the right of indigenous peoples to self-determination, and an eye on Arctic practices, this article analyses the right of indigenous peoples to self-determination and its exercise at the intergovernmental level. While the exercise of self-determination necessarily implies the right of indigenous peoples to autonomy in their internal and local matters and their involvement in decision-making at the state level, this article argues that self-determination additionally includes the right of indigenous peoples to be represented and to participate in the international arena: the intergovernmental aspect of self-determination. Although this analysis determines that it is yet too early to indicate the existence of a fully-fledged right, this article also evidences that there is a new policy goal at the un level, accompanied by practices at the arctic regional level, which could support the emergence of such a right in the future.

scholarly journals 6 The Intersection of Human Rights and Decision Making Capacity Legislation with Person Centred Approaches

2019 ◽  
Vol 48 (Supplement_3) ◽  
pp. iii1-iii16
Author(s):  
Amanda Phelan ◽  
Patricia Rickard Clarke
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
United Kingdom ◽  
Social Care ◽  
Self Determination ◽  
Cognitive Capacity ◽  
Risky Decision ◽  
Support Person ◽  
Decision Making Capacity ◽  
Health And Social Care

Abstract Background A major focus on decision making capacity (as opposed to cognitive capacity and competence) legislation in many Western countries is the integration of a human rights approach focused on self-determination and autonomy. This paper examines modern day concepts of personhood and person centred care and presents Irish and United Kingdom legal commentaries which focus on health services’ and society's approaches to risky decision making. Integrating human rights into decision making capacity legislation has been central in contemporary discourses on health and welfare. Methods A literature review was undertaken charting the emergence of personhood, person centred care and human rights. Case studies of influential legal commentaries in Ireland and the United Kingdom where decision-making capacity was addressed were mapped to person centred care principles. Results Findings point to a convergence of discourses of human rights in contemporary approaches to health and social care as well as the evolution of legislation to support person centredness in fostering safeguarding and promoting autonomy and self-determination. Specific legal commentaries point to the need of health and social care to be mindful of paternalism and to conceptualise the concept of ‘risk’ with a particular emphasis on the inclusion and defence of the voice of the older or vulnerable person. Conclusion The intrinsic worth of each human is articulated through an implicit and explicit vindication of their human rights. The emergence of the third generation of human rights has argued the value of self-determination and autonomy, articulated through robust national legislation on decision-making capacity based on the core principles of person centred care approaches. This move from paternalism is imperative and is imbued in contemporary legislation and legal commentaries, which has noted the need for revisions in health and social care case management perspectives.

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