A Clash of Legal Norms

2017 ◽  
Vol 5 (2) ◽  
pp. 87-116
Author(s):  
Seth Tweneboah
Keyword(s):  
Human Rights ◽  
The State ◽  
Traditional Values ◽  
Legal Norms ◽  
Political Modernization ◽  
Continued Use

This paper explores the reasons for proscribed sanctions and their effects on contemporary Ghana. I contend that the sacred office of the Ghanaian chief, which is legitimated by spiritual and legal norms, plays an ambivalent role in Ghana’s legal and political modernization. Using banishment as a case study, the paper pays attentions to how the continued use of proscribed sanctions, among other chiefly actions, raises an ambivalent challenge to Ghana’s laws, its sovereignty, and its commitment to human rights. I propose actions that may aid the state in overcoming these challenges and successfully integrating modern norms with ancient traditional values.

Articulating key obligations of states to persons deprived of liberty under a right to health framework: the Philippine case study

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Lee Edson P. Yarcia ◽  
Jan Michael Alexandre C. Bernadas
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Right To Health ◽  
The Philippines ◽  
The State ◽  
Policy Reforms ◽  
Physical And Mental Health ◽  
Content Type ◽  
The Right

Purpose This paper aims to examine key obligations of states to persons deprived of liberty (PDLs) under the right to health framework in the context of COVID-19. As a case study, it also describes the state of health in places of detention in the Philippines during the pandemic, with an end view of providing granular recommendations for prison policy reforms. Design/methodology/approach Relevant rules under international human rights law related to places of detention were thematically analyzed to articulate the scope of the right to health of PDLs. To describe the state of places of detention in the Philippines, this paper relied on archival research of news from selected local mainstream and specialized media. Findings The right to health framework provides a foundation for the response to COVID-19 in places of detention. Key concerns include increase in the number of infections, vulnerabilities in physical and mental health, and the spread of infection among correctional staff. Long-standing structural constraints and limited health information compound the threat of COVID-19. The Philippines must comply with its human rights obligations to PDLs to effectively address COVID-19-related concerns. Practical implications Policy reforms in Philippine places of detention must include application of community standards on physical and mental health, implementation of emergency release and application of non-custodial measures for long-term prison decongestion. Originality/value This is one of the few papers to analyze human rights in health care in places of detention during a pandemic, as nuanced in the context of the Philippines.

Legislative discrepancies: an analysis of Missouri’s current human trafficking laws and the need to improve its legal protection of victims

2020 ◽  
Vol 13 (2) ◽  
pp. 143-158
Author(s):  
Rachel Kappler ◽  
Arduizur Carli Richie-Zavaleta
Keyword(s):  
Public Health ◽  
Human Rights ◽  
Best Practice ◽  
Legal Protection ◽  
State Level ◽  
The State ◽  
Safe Harbor ◽  
Content Type ◽  
The Usa

Purpose Human trafficking (HT) is a local, national and international problem with a range of human rights, public health and policy implications. Victims of HT face atrocious abuses that negatively impact their health outcomes. When a state lacks protective laws, such as Safe Harbor laws, victims of HT tend to be seen as criminals. This paper aims to highlight the legal present gaps within Missouri’s anti-trafficking legislation and delineates recommendations for the legal protection of victims of HT and betterment of services needed for their reintegration and healing. Design/methodology/approach This case-study is based on a policy analysis of current Missouri’s HT laws. This analysis was conducted through examining current rankings systems created by nationally and internationally recognized non-governmental organizations as well as governmental reports. Additionally, other state’s best practice and law passage of Safe Harbor legislations were examined. The recommendations were based on human rights and public health frameworks. Findings Missouri is a state that has yet to upgrade its laws lately to reflect Safe Harbor laws. Constant upgrades and evaluations of current efforts are necessary to protect and address HT at the state and local levels. Public health and human rights principles can assist in the upgrading of current laws as well as other states’ best-practice and integration of protective legislation and diversion programs to both youth and adult victims of HT. Research limitations/implications Laws are continually being updated at the state level; therefore, there might be some upgrades that have taken place after the analysis of this case study was conducted. Also, the findings and recommendations of this case study are limited to countries that are similar to the USA in terms of the state-level autonomy to pass laws independently from federal law. Practical implications If Safe Harbor laws are well designed, they have greater potential to protect, support and assist victims of HT in their process from victimization into survivorship as well as to paving the way for societal reintegration. The creation and enforcement of Safe Harbor laws is a way to ensure the decriminalization process. Additionally, this legal protection also ensures that the universal human rights of victims are protected. Consequently, these legal processes and updates could assist in creating healthier communities in the long run in the USA and around the world. Social implications From a public health and human rights perspectives, communities in the USA and around the world cannot provide complete protection to victims of HT until their anti-trafficking laws reflect Safe Harbor laws. Originality/value This case study, to the best of the authors’ knowledge, is a unique analysis that dismantles the discrepancies of Missouri’s current HT laws. This work is valuable to those who create policies at the state level and advocate for the protection of victims and anti-trafficking efforts.

scholarly journals Legal Pluralism and the Rule of Law in Timor Leste

2006 ◽  
Vol 19 (2) ◽  
pp. 305-337 ◽  
Author(s):  
LAURA GRENFELL
Keyword(s):  
Rule Of Law ◽  
Legal Pluralism ◽  
The State ◽  
East Timor ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Informal System ◽  
Transitional Countries ◽  
Timor Leste

Many transitional countries face the problem of establishing the rule of law in a weak justice sector where a gulf separates local legal norms from national, constitutional norms that are drawn largely from the international sphere. As a case study of East Timor this article challenges simplistic positivist notions about the normative hierarchy of laws within a constitutionally bounded polity. It argues that in transitional countries such as East Timor legal pluralism is important but must be properly tuned to serve the rule of law. Legal pluralism poses certain dangers when it operates without any of the checks or balances that ensure accountability and the promotion of constitutional values such as equality. The rule of law is not served by an informal system where there are no formal avenues of appeal and thus minimal accountability and transparency. A more promising version of legal pluralism that comports with the rule of law is one that empowers the state to monitor local decisions to ensure that they observe the norms set out in East Timor's Constitution.

The Case for the Constitutionalisation of Economic, Social and Cultural Rights (ESCRs) in Botswana

2020 ◽  
pp. 1-26
Author(s):  
Emmanuel Botlhale
Keyword(s):  
Human Rights ◽  
The State ◽  
Equal Treatment ◽  
Political Rights ◽  
Case Study Approach ◽  
Cultural Goods ◽  
Cultural Rights ◽  
Study Approach ◽  
Civil And Political Rights

Abstract This paper argues that there is no hierarchy in the importance attached to the different categories of human rights. Hence, Civil and Political Rights (CPRs) and Economic, Social, and Cultural Rights (ESCRs) are both human rights and must be placed on the same pedestal. In a democracy, it is imperative that all rights be accorded equal treatment. The aim of this paper is to investigate whether Botswana accords equal treatment to the two categories of human rights. Using a case study approach, the paper concludes that while the Constitution of Botswana provides for CPRs, ESCRs are absent from this instrument. Consequently, the provision of economic, social, and cultural goods is policy-based. The paper argues that this raises accountability and justiciability challenges because the state cannot be sanctioned for failing to provide non-rights. It recommends the constitutionalisation of ESCRs to maximise the accountability and justiciability of ESCRs.

scholarly journals Migrants in the Attic: The Case of Migrants with Disabilities and Resettlement Services in Serbia

Laws ◽  
2021 ◽  
Vol 10 (1) ◽  
pp. 10
Author(s):  
Joel John Badali
Keyword(s):  
Human Rights ◽  
International Cooperation ◽  
Asylum Seekers ◽  
Service Providers ◽  
The State ◽  
Refugee Law ◽  
Settlement Services ◽  
Balkan Region

The global migrant crisis triggered an unprecedented number of asylum seekers in the Balkan region. In this case study, the state of migrants with disabilities—a community notoriously overlooked during global conflict—is explored through field interviews of settlement service providers in Serbia. A human rights framework is espoused in first examining contemporary refugee law discourse and the corresponding gaps in current resettlement practice of migrants with disabilities. The study’s findings illuminate the need for a drastic shift in settlement services for those migrants most vulnerable to persecution in de facto destination countries. The discussion takes aim at “humanitarian silo” funding models and argues for international cooperation and transparency in accommodating migrants with disabilities internationally.

scholarly journals Bride Trafficking in India: Aspects, Causes and Potential Solutions

2021 ◽  
Vol 8 (3) ◽  
pp. 67-92
Author(s):  
N. K. Upadhyay
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
Family Members ◽  
The State ◽  
Human Rights Violations ◽  
Female Infanticide ◽  
Illicit Trade ◽  
In Transit

Bride Trafficking is a long-standing evil in society that can be classified as a crime against humanity because it violates the rights, dignity and the liberty of the victims involved. Bride Trafficking is so deep rooted in society that providing accurate figures is extremely difficult since it is often impossible to track down and trace individual incidents of Bride Trafficking. According to the author, who has conducted a case study with fifty women from the State of Haryana, inter-country trafficking for the purpose of marriage is widespread in India. Trafficked women are subjected to a slew of atrocities, including being raped in transit and then raped by their husbands and other male family members. Apart from that, they face domestic violence, are treated worse than slaves and are frequently trafficked multiple times. Poverty, female foeticide, female infanticide, illiteracy, dowry and other factors can all contribute to trafficking. In this paper, the author will discuss Bride Trafficking in general, the reasons for it, the human rights violations that these trafficked brides face and the potential solutions to this illicit trade.

Intersectionality in Treaty Body Decisions

2021 ◽  
pp. 130-166
Author(s):  
Johanna Bond
Keyword(s):  
Human Rights ◽  
Family Member ◽  
The State ◽  
Body System ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Treaty Body ◽  
International Body ◽  
The Government

This chapter uses the Committee on the Elimination of Discrimination Against Women (CEDAW) as a case study to explore the extent to which the UN treaty bodies have embraced intersectionality in their examination of individual complaints. In many cases, the UN treaty body system allows human rights victims to seek justice for rights violations by submitting a human rights complaint to one of the treaty bodies. The ability to bring a complaint to an international body offers victims a chance at compensation, remedies that may prevent future violations, and an acknowledgment that the state violated their rights. Although the complaint process cannot bring back a family member who was, for example, murdered by representatives of the state, holding the government accountable for its actions can be a powerful remedy for many victims. This chapter probes for evidence of intersectional analysis in one Committee’s consideration of individual complaints. The Committee’s jurisprudence reveals that it is moving toward an intersectional approach, which will enhance available remedies and lead to stronger human rights protection.

scholarly journals Evolutionary trends in the interpretation of the European Court of Human Rights under the European Convention on Human Rights

2021 ◽  
Vol 39 (68) ◽  
pp. 88-102
Author(s):  
Svitlana Karvatska ◽  
Mariia Blikhar ◽  
Nataliia Huralenko
Keyword(s):  
Human Rights ◽  
The State ◽  
International Justice ◽  
European Convention ◽  
Judicial Activism ◽  
Evolutionary Trends ◽  
Legal Norms ◽  
European Court ◽  
Wide Range ◽  
Formal Application

The purpose of this Article is to analyse evolutionary trends in the interpretation of the European Convention on Human Rights (ECHR) by the European Court of Human Rights (ECtHR). To achieve this goal, a wide range of general philosophical methods were used. The Article submits that the ECHR has shown a growing commitment to the evolutionary method of interpretation, using the doctrine of a "living instrument", the ECHR, which is particularly important for Member States with specific problems, although this method limits the scope in the discretion of the State. It is concluded that the interpretative methodology used by the ECHR involves the use of its methods, including increasingly developing methods of consensus, efficiency, judicial activism, comparison, innovative interpretation, autonomous method, and "balance" method. This demonstrates, inter alia, the unlimited potential to improve the ECHR's interpretation of conventional standards. In the context of modern transformations in the direction of proactive international justice, judicial activism objectively departs from a formal application of legal norms and reflects the ECHR's desire to protect the fundamental human rights of individuals and communicatethem.

Multiculturalization of Societies: The State and Human Rights Issues

2008 ◽  
pp. 134-151 ◽  
Author(s):  
Irène Bellier
Keyword(s):  
Human Rights ◽  
The State ◽  
Illustrative Case ◽  
Illustrative Case Study ◽  
Rights Issues

Chapter seven, written by Irène Bellier, addresses the concept of human rights in the context of so-called ‘multicultural societies’, and uses the Roma as an illustrative case study.

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