Part III: Prospects for and Barriers to Implementation: Case Studies: The UN Convention and the European Instruments for the Protection of the Migrants

1991 ◽  
Vol 25 (4) ◽  
pp. 818-830
Author(s):  
Giovanni Kojanec
Keyword(s):  
Migrant Workers ◽  
Western Europe ◽  
Community Context ◽  
Equal Treatment ◽  
European Convention ◽  
Political Rights ◽  
Member States ◽  
Barriers To Implementation ◽  
Europe Today ◽  
The Right

Two different situations concerning migration are present in Western Europe today: the EEC system and the framework of rules established independently of that system by specific treaties. The EEC regulations are based on the principle of freedom of movement, stay and work for nationals of a member state in the territory of all other member states, equality of treatment with nationals of the host country being strictly applicable. Outside the Community context, a number of multilateral treaties between member states of the Council of Europe, whose rules have been developed mainly on the basis of principles established by ILO Conventions, are in force, all inspired by the following guiding principles: safeguarding the right of each state to decide on the admission of foreign immigrants; affirming the guarantee of equal treatment to immigrants legally admitted and limiting the application of said rules to nationals of the contracting parties. Basic civil and political rights are protected, independently of nationality, with regard to every person within the jurisdiction of states parties to the European Convention on Human Rights. Consequently, the UN Convention is essentially relevant for those migrant workers present in Europe who are nationals of those states not members of the EEC or not parties to those European conventions. Particularly important are the provisions concerning irregular migrations.

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

2021 ◽  
Vol 2021 (2) ◽  
pp. 288-305
Author(s):  
Delano Cole van der Linde
Keyword(s):  
The United States ◽  
Organised Crime ◽  
Gang Member ◽  
European Convention ◽  
Political Rights ◽  
Freedom Of Association ◽  
Criminal Organisation ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

In terms of section 10(3) of the Prevention of Organised Crime Act 121 of 1998 (“POCA”), a court may impose an aggravated sentence on a criminal offender if the offender was a gang member at the time of the commission of a crime. The court is entitled to apply section 10(3) to the sentencing of any common-law or statutory offence, save for the gang-related offences in Chapter 4 of POCA. As aggravated punishment is attached directly to a person’s status as a gang member, one must question whether such aggravated punishment does not violate the right to freedom of association in section 18 of the Constitution of the Republic of South Africa, 1996. Section 18 is an unqualified right and subject only to the limitations clause under section 36 of the Constitution. The purpose of this contribution is to investigate whether the associational freedom guaranteed by the Constitution may be limited in light of considerations under international law (such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and the European Convention on the Protection of Human Rights and Fundamental Freedoms) as well as foreign law (specifically the United States and Germany). The consensus is, broadly speaking, that persons are nondeserving of associational protection where the conduct connected to such an association is criminal in nature. Increased criminal consequences are justifiable where a person’s unlawful conduct is also connected to their status and activity as a member of a criminal organisation. However, increased criminal consequences based merely on a person’s membership of a criminal organisation, as is the case in terms of section 10(3) of POCA, is considered arbitrary and irrational. The conclusion is that section 10(3) of POCA should be amended so that it applies only to crimes that are related to a convicted person’s gang-related activities.

scholarly journals Theoretical reflection on the impact of globalization processes on civil rights

2015 ◽  
Vol 16 (SE) ◽  
pp. 309-326
Author(s):  
Ehsan Madmalil ◽  
Fereydoun Akbarzadeh
Keyword(s):  
Political Philosophy ◽  
Civil Rights ◽  
Western Europe ◽  
Modern Human ◽  
Modern Theory ◽  
Political Rights ◽  
Theoretical Terms ◽  
Contemporary World ◽  
The Right ◽  
The Impact

The concept of citizenship is one of the old key concepts in political philosophy that has been reproduced in various forms since the formation of classical political philosophy up to modern times within the theory set forth in this type of theoretical philosophy. So, pre-modern theory, modern theory and postmodern theory can be noted. The concept of citizenship is an idea which governs the right of modern human and was emerged in the Western Europe and is a product of modern politics. Accepting Legal and political rights and duties is raised by citizenship status, its main foundation and the basic idea of the concept. In the contemporary world, citizenship has been interested more than other societies. The question that comes to mind here is that how is the situation of civil rights in the era of theoretical terms in globalization? In response to the question hypothesis is that with globalization, citizenship in its modern form that was enclosed in the geography of the national government has lost its sense and civil rights embodied in the discourses that are outside the reach of state law. This study aimed to investigate the impact of globalization on the civil right and conceptual evolution theoretically, as contemporary theorists have theorized it. Research findings indicate the "global citizenship" as a concept is emerging in the era of globalization as the result of rethinking of citizenship in the modern age. The methodology of study is analysis - descriptive, this means that the concept of civil right is described and then the theoretical changes in the era of globalization will be analyzed.

The Idea of Human Rights in Conditions of Hospital Treatment

2016 ◽  
pp. 1147-1165
Author(s):  
Bogusław Sygit ◽  
Damian Wąsik
Keyword(s):  
Human Rights ◽  
Civil Liberties ◽  
European Convention ◽  
Hospital Treatment ◽  
Political Rights ◽  
Human Rights Abuses ◽  
Cultural Rights ◽  
European Court ◽  
Definition Of ◽  
The Right

The aim of this chapter is describing of the influence of universal human rights and civil liberties on the formation of standards for hospital care. The authors present definition of the right to life and the right to health. Moreover in the section it is discussed modern standards of hospital treatment under the provisions of the International Covenant on Economic, Social and Cultural Rights: availability, accessibility, acceptability and quality. The authors discuss in detail about selected examples realization of human rights in the treatment of hospital and forms of their violation. During the presentation of these issues, the authors analyze a provisions of the International Covenant on Civil and Political Rights and European Convention on the Protection of Human Rights and Fundamental Freedoms and use a number of judgments of the European Court of Human Rights issued in matters concerning human rights abuses in the course of treatment and hospitalization.

The Interests Protected by the Right to Security of Person

2019 ◽  
pp. 103-122
Author(s):  
Rhonda Powell
Keyword(s):  
Human Rights ◽  
South African ◽  
Capabilities Approach ◽  
European Convention ◽  
Political Rights ◽  
Bill Of Rights ◽  
Human Rights Law ◽  
Economic Rights ◽  
Canadian Charter ◽  
The Right

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

scholarly journals The Protection of Human Rights in Post-Communist Albania

2016 ◽  
Vol 7 (1) ◽  
pp. 63
Author(s):  
Meljana Bregu
Keyword(s):  
Human Rights ◽  
Criminal Code ◽  
Fair Trial ◽  
European Convention ◽  
Communist Regime ◽  
Political Rights ◽  
Revolutionary Movement ◽  
The Past ◽  
Protection Of Human Rights ◽  
The Right

Albania was one of the most isolated countries in Europe for nearly 45 years. During the communist era, the legal system was under the direct control of the Party of Labor. The protection of human rights in the first years of the communist regime was clearly shaped on the soviet principles. The criminal code of Albania was the symbol of a repressive system, regardless of human rights protection, crimes punishable by death were sanctioned by various articles, including “agitation and propaganda against the state” and ‘activities against the revolutionary movement of the working class”. Hoxha also closed the Ministry of Justice and banned the private practice of law as a consequence the right to a fair trial was denied. After the fall of communism Albania has made significant progress toward respect for civil and political rights, especially toward the right to a fair trial. The constitution of 1998 protects the right to a fair trial in chapter two and one important step is the ratification of the European Convention on Human Rights in 1996, which guarantee the right to a fair trial in article six. Still, 25 years of transformation are not enough to wipe away the legacy of the past; the lack of human rights mechanisms poses a serious challenge to the Albanian democratic system. Still today Albania faces important issues concerning the protection of human rights generally and particularly the right to a fair trial. This fact is evident if we refer to the cases of the European Court of human rights versus Albania dealing with the application of article 6 of the Convention.The paper aims to address the protection of human rights after the demise of the communist regime, especially regarding the right to a fair trail, analyzing the progress but also the continuity in some aspects with the past.

scholarly journals The Rights of Workers, Migrant Workers and Trade Unions in the Light of the European Convention on Human Rights

2021 ◽  
pp. 224-246
Author(s):  
Paulo Pinto de Albuquerque
Keyword(s):  
Human Rights ◽  
Migrant Workers ◽  
Trade Unions ◽  
Case Law ◽  
European Convention ◽  
Labor Rights ◽  
Freedom Of Association ◽  
Labor Legislation ◽  
European Court ◽  
The Right

The European Court of Human Rights (the Court, the ECHR) has made a significantcontribution to the protection of social rights in general and labor rights in particular. The articlefocuses on four specific areas that demonstrate the richness of case-law in this area. First of all, theauthor focuses on individual issues related to the general rights of workers, drawing attention to issuesof unfair dismissal, the right to respect for private and family life, freedom of religion and freedomof expression. Secondly, the author dwells on the protection of the rights of migrant workers underthe Convention for the Protection of Human Rights and Fundamental Freedoms. Third, the articleexamines trade union rights in the light of freedom of association. Finally, reflecting the economiclandscape of the past decade, case-law is provided to demonstrate how austerity measures can affecthuman rights and how the Court has responded to this problematic issue.Social rights, including labor rights, have received many advantages from the fact that they wereconsidered in the case-law of the Court, since its practice clarified the boundaries and limited thestate’s unlimited discretion in the management of these rights. At the same time, a certain trend hasformed. If at first the protection of workers’ rights and freedoms sharply increased, which is confirmedby some textbook cases of the ECHR, now it is impossible not to notice a regressive trend that isassociated with labor legislation, expands the discretion of governments and significantly limits theeffectiveness of the Court when considering labor rights. However, this regressive trend should notbe regarded as irreversible. The article highlights how meaningful consideration of soft law principlesallows the Court to take a progressive position that promotes labor rights and how it can continueto help protect workers’ rights.

scholarly journals NEPRUŽANJE ZDRAVSTVENE SKRBI KAO POVREDA ČLANKA 3. EUROPSKE KONVENCIJE S POSEBNIM OSVRTOM NA PRAKSU SUDA U PREDMETIMA IZVAN KONTEKSTA ZADRŽAVANJA

2021 ◽  
Vol 37 (2) ◽  
pp. 83-104
Author(s):  
Maša Marochini Zrinski ◽  
Karin Derenčin Vukušić
Keyword(s):  
Health Care ◽  
Human Rights ◽  
Right To Health ◽  
European Convention ◽  
Political Rights ◽  
Right To Health Care ◽  
European Court ◽  
The Social ◽  
The Right ◽  
Political Character

The European Convention on Human Rights, as a main Council of Europe instrument for the protection of civil and political rights, does not guarantee the right to health care. However, the European Court of Human Rights broadly interprets Convention rights, and within the context of Articles 2, 3 and 8 of the Convention it gave certain indications that it might start dealing with the issue of health care. Without going into details of all the mentioned articles, this paper will analyse cases where the Court dealt with the issue of violation of Article 3 due to non-provision of health care outside the context of detention. Namely, within the context of detention, there is a clear obligation for states to provide health care, and the Court often relies on the reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. What we consider important to point out is the Court’s case-law on providing health care outside the context of detention, given the social character of the right to health care, which goes beyond the civil and political character of the Convention.

scholarly journals Conditions of workers' participation in the European context-works councils structures in the Central and Eastern Europe

2009 ◽  
Vol 12 (3) ◽  
pp. 29-44 ◽  
Author(s):  
Katarzyna Skorupińska
Keyword(s):  
Eastern Europe ◽  
Western Europe ◽  
Central And Eastern Europe ◽  
Organizational Structures ◽  
Member States ◽  
Works Councils ◽  
Eu Member States ◽  
On The Road ◽  
Right To Information ◽  
The Right

The implementation of the 2002 Directive caused establishment of participation structures in coimtries of the Central and Eastern Europę following the pattern of works councils in Western Europę. The institiitions of workers participation have right to information and consultation but they do not possess the right to codetermination which for a long time has been granted to most works councils in the old EU Member States. Works councils in the new EU Member States have not been established on the road of organie development but they had to define their entitlements and evolve organizational structures themselves. In this article two major topics are discussed: types of employees' interests representation and dijferences in structures of works councils in coimtries of the Central and Eastern Europę. The main aim of the paper is to present the most important factors which affect the establishment and creation of such institiitions.

3. A legal right

2015 ◽  
Author(s):  
Raymond Wacks
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
European Convention ◽  
Political Rights ◽  
Human Right ◽  
The Right To Privacy ◽  
Individual Privacy ◽  
European Court ◽  
Us Supreme Court ◽  
The Right

Privacy is acknowledged as an essential human right, recognized by a number of international declarations, among which the European Convention on Human Rights and the International Covenant on Civil and Political Rights are the most significant. Interpreting these provisions, the European Court of Human Rights provides important guidance in respect of the attempt to balance privacy against competing rights and interests, and this is briefly discussed. Leading decisions of the courts of various jurisdictions illustrate the problems of definition and the attempt to balance privacy against other competing rights. Cases before the US Supreme Court have generated an enormous, divisive debate concerning, in particular, the subject of abortion, which the Court has conceived to be an element of the right to privacy. A discussion of the celebrated US Supreme Court judgement in Roe v Wade is fundamental to an analysis of the meaning and limits of individual privacy.

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