scholarly journals Die Grundrechtskollision

2021 ◽  
Author(s):  
Matthias Uffer

When fundamental rights collide, the State can be precluded from fully meeting the usual requirements of the human rights order and find itself forced to severely restrict some of the rights involved. The analysis of legal and ethical theory as well as of specific cases (e.g. shooting down of civil airplanes; “rescue torture”; force-feeding a prisoner on a hunger strike) lead the author to a decidedly consequentialist understanding of fundamental rights. The work ends with a critical discussion of reasons and criteria to be taken into account when looking for the best (i.e. least bad) resolution of conflicts of fundamental rights. (Areas: Theories of justice, dogmatics of fundamental rights, legal theory.)

2018 ◽  
Vol 37 (2) ◽  
pp. 294-312 ◽  
Author(s):  
Yasmin Ibrahim ◽  
Anita Howarth

Through the biotechnology of the force-feeding chair and the hunger strike in Guantanamo, this paper examines the camp as a site of necropolitics where bodies inhabit the space of the Muselmann – a figure Agamben invokes in Auschwitz to capture the predicament of the living dead. Sites of incarceration produce an aesthetic of torture and the force-feeding chair embodies the disciplining of the body and the extraction of pain while imposing the biopolitics of the American empire on “terrorist bodies”. Not worthy of human rights or death, the force-fed body inhabits a realm of indistinction between animal and human. The camp as an interstitial space which is beyond closure as well as full disclosure produces an aesthetic of torture on the racialised Other through the force-feeding chair positioned between visibility and non-visibility. Through the discourse of medical ethics and the legal struggle for rights, the force-feeding chair emerges as a symbol of necropolitics where the hunger strike becomes a mechanism to impede death while possessing and violating the corporeal body.


2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.


NUTA Journal ◽  
2019 ◽  
Vol 6 (1-2) ◽  
pp. 64-69
Author(s):  
Rameshwor Upadhyay

This paper highlighted Nepalese statelessness issue from Nationality perspective. Nationality is one of the major human rights concerns of the citizens. In fact, citizenship is one of the major fundamental rights guaranteed by the constitution. According to the universal principle related to the statelessness, no one shall be arbitrarily deprived of his or her nationality. In this connection, on one hand, this paper traced out the international legal obligations created by the conventions to the state parties in which state must bear the responsibility for making national laws to comply with the international instruments. On the other hand, this paper also appraised statelessness related lacunae and shortcomings seen in Municipal laws as well as gender discriminatory laws that has been supporting citizens to become statelessness. By virtue being a one of the modern democratic states in the world, it is the responsibility of the government to protect and promote human rights of the citizens including women and children. Finally, this paper suggests government to take necessary initiation to change and repeal the discriminatory provisions related to citizenship which are seen in the constitution and other statutory laws.


2019 ◽  
Vol 31 (3) ◽  
pp. 581-600
Author(s):  
Michelle C. Velasquez-Potts

Since 2002, prisoners at Guantánamo Bay detention camp have been force-fed as punishment for hunger striking, prompting the question of at what point the medical clinic becomes a site of punitive suffering. This essay examines force-feeding as an instantiation of the tension between authority, visuality, and pain. Through a detailed analysis of prisoner testimonials, the policy manual Medical Management of Detainees on Hunger Strike, and a video project by human rights organization Reprieve featuring artist Yasiin Bey simulating the “proper” techniques for force-feeding, the author argues that pain becomes the basis of not only political subjectivity but also relationality between those held captive and the spectator.


2018 ◽  
Vol 19 (1) ◽  
pp. 45-60
Author(s):  
Pavel Ondrejek

Abstract: Positive obligations of States to protect and implement human rights are considered a part of various effects of human rights in legislations. In this article, it is argued that a crucial problem arises from the inconsistent practice of addressing violations of human rights committed by juristic persons together with a lack of underlying general theory of liability for human rights violations committed by private entities. Without a major change in the legal doctrine and case-law, we will need to remain focused on the role of the State as a guarantor of human rights, rather than on the imposition of human rights obligations on private-law entities. In this article, it is argued that the nature of the relationship between a juristic person and the State is not the only relevant aspect, as we should also examine the activity of the juristic person in question.Keywords: Positive obligations of States. Juristic persons. State-juristic person nexus. Fundamental rights. Horizontal effect.Resumo: Obrigações estatais positivas de proteger e de implementar direitos humanos são parte dos vários efeitos dos direitos humanos nas legislações nacionais. Neste artigo, argumenta-se que um problema crucial decorre da prática de abordar violações de direitos humanos cometidas por pessoas jurídicas sem uma teoria geral da responsabilidade por violações de direitos humanos cometidas por entidades privadas. Sem uma mudança importante na doutrina e na jurisprudência será preciso permanecer olhando apenas para o papel do Estado como garantidor de direitos humanos. Neste artigo argumenta-se que a natureza da relação entre uma pessoa jurídica e o Estado não é o único aspecto relevante. É preciso examinar também a atividade da pessoa jurídica em questão.Palavras-chave: Obrigações positivas dos Estados. Pessoas jurídicas.


Author(s):  
O.O. Shafi ◽  
K.V. Lyashenko

The article examines the problems of euthanasia and the realization of the human right to suicide with the help of others in the context of the European Convention for the Protection of Human Rights and Fundamental Rights, the case law of the European Court of Human Rights. The authors focused on finding the necessary compromise between protecting the patient's right to life, which is a positive commitment of the state, and protecting the patient's right to respect for private life and individual independence. The main positions of the European Court of Human Rights on the possibility of use in euthanasia and in which cases are analyzed step by step. In each case, it was described under what conditions the applicants had applied to the Court and what the difference was between the cases. It is emphasized what the Court relied on in resolving each individual case. It is stated how the Court interprets the possibility of applying Article 2 of the Convention in a negative light and in what cases and under what conditions the Court considers it necessary to apply the principle of “ratione personae”. It is indicated what is the main difference between active and passive euthanasia, and in which countries any of the forms of termination of life of a sick person is allowed, regulated and clearly regulated. It is noted that the issue of application or discontinuation of treatment was considered taking into account many objective factors that are taken into account in each case. Also, attention is paid to the analysis of the court's position on the importance of the role of the state in matters of termination of life, where countries should be given discretion in deciding on disconnection from artificial life support. Separately, the main risks of legitimizing euthanasia are emphasized, in particular, the authors point to the need to improve and comply with the imperative norms in each country to ensure the fulfillment of the positive responsibilities of each state.


Author(s):  
Peter Ferdinand

This chapter examines how laws, constitutions, and federalism provide structure to the context of political life. It first considers the importance of constitutions in determining the basic structure of the state and the fundamental rights of citizens that they establish before asking whether the Universal Declaration of Human Rights is Western-centric. It then explores different ways in which states may attempt to realize justice in applying the law, with particular emphasis on differences between Islamic and Western practice. It also discusses the importance of constitutional courts, the ways that the institution of federalism contains the powers of the state and manage diverse societies, and consociationalism as an alternative approach to managing such diversity. Finally, it comments on the increasing legalization of political life.


Author(s):  
Schabas William A

This chapter comments on Article 106 of the Rome Statute of the International Criminal Court. Article 106 strikes a balance between the general carceral system applicable in the State of enforcement that applies to the Court's prisoner, and the requirement of generally accepted international standards drawn from human rights instruments. This ‘national treatment’ clause was originally introduced to ensure that prisoners of the Court would not receive treatment that was worse than that of ordinary prisoners. The primary function of the provision is protecting the fundamental rights of the prisoner. The article also declares that Communications between a sentenced person and the Court shall be unimpeded and confidential.


2020 ◽  
Author(s):  

This GSoD In Focus Special Brief provides an overview of the state of democracy in Asia and the Pacific at the end of 2019, prior to the outbreak of the pandemic, and assesses some of the preliminary impacts that the pandemic has had on democracy in the region in 2020. Key fact and findings include: • Prior to the outbreak of the COVID-19 pandemic, countries across Asia and the Pacific faced a range of democratic challenges. Chief among these were continuing political fragility, violent conflict, recurrent military interference in the political sphere, enduring hybridity, deepening autocratization, creeping ethnonationalism, advancing populist leadership, democratic backsliding, shrinking civic space, the spread of disinformation, and weakened checks and balances. The crisis conditions engendered by the pandemic risk further entrenching and/or intensifying the negative democratic trends observable in the region prior to the COVID-19 outbreak. • Across the region, governments have been using the conditions created by the pandemic to expand executive power and restrict individual rights. Aspects of democratic practice that have been significantly impacted by anti-pandemic measures include the exercise of fundamental rights (notably freedom of assembly and free speech). Some countries have also seen deepened religious polarization and discrimination. Women, vulnerable groups, and ethnic and religious minorities have been disproportionately affected by the pandemic and discriminated against in the enforcement of lockdowns. There have been disruptions of electoral processes, increased state surveillance in some countries, and increased influence of the military. This is particularly concerning in new, fragile or backsliding democracies, which risk further eroding their already fragile democratic bases. • As in other regions, however, the pandemic has also led to a range of innovations and changes in the way democratic actors, such as parliaments, political parties, electoral commissions, civil society organizations and courts, conduct their work. In a number of countries, for example, government ministries, electoral commissions, legislators, health officials and civil society have developed innovative new online tools for keeping the public informed about national efforts to combat the pandemic. And some legislatures are figuring out new ways to hold government to account in the absence of real-time parliamentary meetings. • The consideration of political regime type in debates around ways of containing the pandemic also assumes particular relevance in Asia and the Pacific, a region that houses high-performing democracies, such as New Zealand and the Republic of Korea (South Korea), a mid-range performer (Taiwan), and also non-democratic regimes, such as China, Singapore and Viet Nam—all of which have, as of December 2020, among the lowest per capita deaths from COVID-19 in the world. While these countries have all so far managed to contain the virus with fewer fatalities than in the rest of the world, the authoritarian regimes have done so at a high human rights cost, whereas the democracies have done so while adhering to democratic principles, proving that the pandemic can effectively be fought through democratic means and does not necessarily require a trade off between public health and democracy. • The massive disruption induced by the pandemic can be an unparalleled opportunity for democratic learning, change and renovation in the region. Strengthening democratic institutions and processes across the region needs to go hand in hand with curbing the pandemic. Rebuilding societies and economic structures in its aftermath will likewise require strong, sustainable and healthy democracies, capable of tackling the gargantuan challenges ahead. The review of the state of democracy during the COVID-19 pandemic in 2020 uses qualitative analysis and data of events and trends in the region collected through International IDEA’s Global Monitor of COVID-19’s Impact on Democracy and Human Rights, an initiative co-funded by the European Union.


Author(s):  
Olga Sydorenko ◽  
◽  
Valerii Zhelnin ◽  

The article is sanctified to research of interpretation and understanding of term «digital rights», decision of totality of those rights and freedoms of man, that fall under a term «digital human rights». In the article the issues of the day and questions were considered already fundamental rights, such as: right on life, right to freedom of speech, opinions, right to respect to private and domestic life in the context of informative computer network – Internet, and also the newest rights, such as: right on access to the Internet, right of digital self-determination, «right to be forgotten» and others like that. Separate attention was spared to the analysis of opinions of scientists and separate authors in relation to the protection of rights and freedoms of people in the Internet and research of events that will help to overcome the problem situations of realization and violation of «digital human rights and freedoms». It is educed that there are many different decisions that touch a term «digital rights», and also different approaches of interpretation of this term are considered, coming from the quantitative volume of rights, that can understand differently. This article attempts to formulate theoretical approaches and principles from the perspective of legal theory and philosophy that, if implemented, could overcome current human rights problems, existing violations of digital human rights and enhance their security and protection. Attempts have been made to explore the fact that, for a better protection of human rights and freedoms, it is necessary to educate the public about their rights and freedoms in the internet domain, to implement the conclusions of the ECHR in cases of human rights violations on the digital web, and so on.


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