The Canadian charter and the protection of international human rights

B.A., University of Alberta 1960; LL.B., University of Alberta 1961; LL.M., University of California at Berkeley 1963.     

犯罪控制与人权保护

犯罪从根本上说是对人的权利的侵犯。惩罚犯罪、控制犯罪是人权保护的应有之义。然而,惩罚犯罪、控制犯罪语境中的人权保护主要是保护遭受犯罪侵害的被害人的权利。事实上,在作为惩罚犯罪载体的刑事诉讼中,人权保护的概念涉及犯罪嫌疑人、被告人、被害人和其他诉讼参与人的诉讼     

The protection of confidential information in the human rights era: two aspects

Legal context: The Human Rights Act has had an obvious impact on the law ofbreach of confidence as it applies to private information. Itsinfluence on the law of confidence as it applies to commercialinformation has been subtle, but nevertheless significant. Key points: Confidentiality is a relative rather than an absolute concept.Whether information is in the public domain or retains the necessaryquality of confidence is a question of degree which dependson the circumstances of the case, and in particular the natureof the information. A compilation of information may be confidentialeven if the individual elements are in the public domain. Itis a defence to a claim for breach of confidence that disclosureof the information would be in the public interest whether theclam is based on an express contractual, an implied contractualor an equitable obligation. The balance of authority favoursthe view that an express contractual obligation carries greaterweight when balancing parties’ Convention rights thanan implied contractual or equitable obligation, but it is difficultto see why this should be so. The real difference between contractualand equitable obligations is that it is possible by contractto prevent the disclosure of information that is not confidential. Practical significance: The law continues to evolve. As matters stand parties are welladvised to seek contractual protection for their confidentialinformation.     

Human genome and protection of human rights in Croatia.

In the context of the human rights, human genome should be analyzed on two different levels. First one is a global macro level mostly determinated by global international documents and the concept of the human genome as a common biological heritage of all human beings. The second level is a private micro level of every human individual whose human genome is expressed by specific DNA "bar code". Information of that personal identity card should be strictly protected through the legal instruments for the protection of privacy rights. The aim of this paper is to analyze if and how human rights are protected within the legal framework and the practice of DNA testing in Croatia.     

Developments in judicial protection of human rights in the Commonwealth Caribbean

Judicial protection of fundamental rights in the Commonwealth Caribbean is identifiable in recent decisions in the areas of: vindicatory damages; discrimination and mala fides; proportionality; and the independence of Magistrates. Under vindicatory damages, the courts recognise the need for non‐compensatory damages for breaches of fundamental rights. In the area of discrimination judicial decisions indicate a movement towards the removal of the requirement of proof of mala fides for an allegation of unequal treatment by a public authority. Also of note are the introduction of proportionality and protection against contracting out of Constitutional rights, with regard to magistrates and their tenure.     

The role of prosecutors in ensuring human rights compliant responses to terrorism

Since 9/11 the threat from terrorism has been regarded as ‘exceptional’, a threat that requires military and sometimes even extra-judicial responses. But experience has shown that these responses can have unintended and counterproductive results. Many experts now believe that criminal justice and rule of law-based responses to terrorism are often more legitimate, effective and sustainable. The paper argues that prosecutors have a vital role to play in promoting appropriate criminal justice responses to terrorism. Yet with no international court with jurisdiction over terrorist crimes, prosecutors carry the primary responsibility to work with their local law enforcement agencies to bring terrorist suspects to justice before national courts, while ensuring that no misuses or abuses of authority have occurred. To deliver on this mandate, prosecutors must remain vigilant and ensure that the counter-terrorism actions of police, corrections and other law enforcement authorities are lawful and respectful of human rights. This will often require immense courage under fire.     

论植物人的法律人格及权利行使和保护

Although human vegetables lose their capacities of will and do not have the intrinsic attribute of civil subjects, they still have legal personalities and the status of civil subjects. The law has not provided for defects of their legal personalities, and thus civil law shall include human vegetables as objects of guardianship. The system of adult guardianship shall be constructed to supplement and correct the legal personalities of human vegetables. When human vegetables enter into a permanent vegetative state or state of brain death, law may declare the termination of legal personalities of the human vegetable. Due to the unique life state and capacity of act of human vegetables, the exercise of their civil rights faces a series of legal difficulties and challenges, mainly involving important issues such as the right of treatment for life rescue, marital right and reproductive right. The civil law shall ensure that the civil right of human vegetables can be fully enjoyed and effectively protected. Zhang Li, associate professor in civil and business law at Fujian Normal University, and also an invited researcher on civil law, international economic law and international private law, co-operated with Law School of Renmin University of China. Till now, she’s already released 23 theses in law journals and a monograph of the Survey of International Private Law. In addition, she was a member in doing studies (2006) on the legislation of Chinese tort law and presides over the researching (2007) of the legal personality and rights of disabled persons.     

中国转型期社会警察权益保护

在中国社会从农业国家向工业国家转型的过程中,社会结构分化复杂,利益冲突和社会矛盾日益激化,社会治安形势异常严峻,警察站在解决冲突的"风头浪尖"上,时常被携裹进激烈的冲突中,执法权和人身权等权益受到了各方面的侵害。保护警察权益的核心在于塑造人民警察"恪守法律、秉公执法、超然于利益"的"中立形象",这就需要公安机关在处理热点案件时应遵循"及时、公开、透明"的原则,充分利用网络平台,掌握社会舆论中澄清案件事实的主动权,在与网民的平等互动中,有效维护警察的各项权益。     

The role of assessment in the continuing professional development of lawyers in England and Wales*

The University of Western Australia (UWA) has recently undertaken a restructure of all its courses. Under the new courses structure, law at UWA is offered at postgraduate Masters level only, as a three-year professional Juris Doctor (JD) degree rather than as an undergraduate Bachelor of Laws degree (LLB). In planning and preparing for the transition from teaching at an undergraduate Bachelor level to teaching at a postgraduate Masters level, the Law Faculty undertook a major review of its curriculum. An important objective of the review was to ensure that the new JD curriculum satisfies the current learning outcomes standards recently adopted by the Australian regulatory framework. The purpose of this article is twofold. First, the article provides a brief background to the changing legal education environment in Australia in the twenty-first century and considers some of the reasons for the adoption of the JD degree at UWA. Second, the article outlines from a practical perspective the planning, implementation and review processes that have been undertaken by the Faculty in meeting the challenges presented by the transition to the JD degree. The article concludes with a brief comment on the future challenges for the Faculty in implementing and maintaining the renewed curriculum.     

The role of human rights in extradition: the imperatives of reforming the Indian extradition law

The mobility of criminals and the consequent internationalization of crime have made domestic criminal law enforcement dependent upon international cooperation. As there is no general obligation of extradition at the international level, every country outlines the conditions and procedure, subject to which requests for extradition are granted. In fact, from the origin of the extradition system, objections stemming from human rights have been the major considerations in the grant or decline of extradition. It is in this background that the article examines and critically reviews the current level of the human rights protections afforded to persons facing extradition under the Indian Extradition Act, 1962. This article notes that in the field of extradition and human rights, several landmark legal developments have occurred in the last 50 years, and accordingly calls for a complete overhaul of the Indian extradition framework, so that India truly and effectively cooperates with other countries in criminal matters.     

我国人权保障中"有限制"沉默权制度

人与人之间权利的和谐是构建和谐社会的重要标志,沉默权是犯罪嫌疑人、被告人的一项重要的诉讼权利,是对国家公权的制约,它是和谐人权社会的重要内容,没有沉默权的权利体系是不完备的权利体系.沉默权制度是刑事诉讼进步的标志,作为一种成熟的法律制度,沉默权制度在司法和审判的实践中起到了不容忽视的作用.我国目前的人权保障制度正日益完善,中国实行这项制度的时机已经逐渐成熟.本文通过对沉默权的论述,结合我国具体的司法实际,阐述在我国设立有限制沉默权对于构建和谐人权社会具有重要意义.     

论人权首要价值在我国行政法中的回归

法的价值是有位阶的,但这种位阶不是恒定的.在社会正常状态下,自由代表了人的最本质的人性需要,它处于法的价值的顶端,这一点已为法国行政诉讼受案范围的扩大和德国的特别权力关系的衰落所证实.我国特定时期是将秩序作为行政法的首要价值.随着社会的进步和法治的发展,人权在我国行政法中的首要地位已经回归,并为我国宪法所确认,加之服务行政的出现,使现有的行政法学面临着重新构建的局面.     

电子商务与消费者权益保护

本文首先分析了我国电子商务发展与消费者权益保护中存在的问题,然后介绍了美国、日本、韩国等在电子商务中保护消费者权益的有关法律法规和主要做法,最后对我国在电子商务发展过程中保护消费者权益方面提出了建议。     

Repositioning the international human rights protection system: the UN Human Rights Council

The creation of a UN human rights mechanism was meant to address systematically the international protection and promotion of human rights within the context of international relations. Over the years, the Human Rights Commission has dealt with human rights issues in ways which some commentators have labelled unsatisfactory. The United Nations High Level Panel on Threats, Challenges and Change, set up by Kofi Anna to conduct an in‐depth study on global threats, and provide an analysis of future challenges to peace and security, recommended a review of HR mechanisms. This led to the establishment of the Human Rights Council, replacing the Human Rights Commission. One of the mechanisms introduced was the Universal Periodic Review of Human Rights. This article looks at how the UPR process has progressed so far and makes some assessment as to where it is heading.