The European Trips-Plus Model and The Arab World: From Co-Operation to Association— A New Era in the Global IPRS Regime?

The advocation of stronger and higher levels of Intellectual Property Rights (IPRs) protection has been on the rise in recent years, particularly since the establishment of the World Trade Organisation (WTO) in 1995. Although its establishment signalled the beginning of a new phase in the protection of IPRs internationally, no more than a decade later, it is seen that such a regime is still undergoing a number of significant changes. In this regard, the rise of bilateralism and the retreat of multilateralism resulted in the so-called ‹TRIPS-Plus’ recipe in which developing countries are increasingly giving way to the demands of the industrialised countries through incorporating higher levels of IPRs protection domestically. Although the USA has often been viewed as the primary advocator and enforcer of the TRIPS-Plus recipe globally, this article shows that in fact the European Union (EU) advocated the TRIPS-Plus recipe long before the USA. Thus, this article discusses the case of the European TRIPS-Plus model with the Arab World as a clear demonstration of such a trend. Developing and Arab countries are now faced with two determined superpowers acting at both the unilateral and bilateral levels to achieve their desired higher standards of IPRs protection worldwide. This will further erode the flexibilities of the TRIPS Agreement, and will entail grave repercussions for both the developing and Arab countries. LLM, PhD, Lecturer in Law, University of Central Lancashire (UCLAN), UK. The author may be contacted at mel-said@uclan.ac.uk     

New Malaise: Bioethics and Human Rights in the Global Era

Recent transnational HIV research projects have raised questions about the ethics of research in developing countries, and with good reason. Lower ethical standards are often applied in these settings, yet the field of bioethics has remained relatively quiet on the subject, concerning itself primarily with issues that only affect affluent countries. Here we call for a new focus on equity and human rights in bioethics.     

Human Rights, Risks, and New Strategies for Global Investment

It is often argued that the rules and practices of foreign directinvestment can threaten the protection of human rights. Thatdanger used to arise from the fact that the investors simplydismissed concern for these rights as their responsibility.This is no longer so. Major lenders and project sponsors nowregularly make commitments to human rights and to allied principlesgoverning environmental protection and health and safety. Thedanger instead arises from the way in which the two domainsare being brought together. The collision that threatens isnot over whether, but over how commercial imperatives are tobe integrated with this branch of social justice. The article aims at diagnosis of the problem and considers somepossible solutions to it. It frames the issues in terms of severalcompeting fundamental principles, and draws on concrete examplesfrom the investment contracts regulating the Baku – Tibilisi- Ceyhan (BTC) and Chad/Cameroon pipeline projects. Once theareas of potential collision between these contracts and humanrights requirements are explored, the essay considers a significantalteration to the BTC agreement, designed to open it up moreeffectively to human rights concerns. The analysis ends witha consideration of some model clauses for investment contractsin the future.     

Search,Seizure, and Immunity: Second-Order Normative Authority and Rights

Abstract

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court's decision is that, at least in some cases, a right can be removed by the intentional actions of the very party against whom the right supposedly protects the rights holder. We argue that the Court's decision is mistaken. The police officers in the case were not morally permitted, and should not be legally permitted, to intentionally create the very circumstances that result in the removal of an individual's right against forced, warrantless search and seizure.     

Re‐Claiming Disability: Identity,Procedural Justice,and the Disability Determination Process

This research highlights the crucial role of an intimate link between a disabled person's self‐identity and the perceived fairness of legal procedures. In doing so, it brings to the foreground a wholly ignored aspect of procedural justice. Earlier researchers have failed to delve into the role identity politics plays in the relationship between the institutions and the beneficiaries of their services, and the way different members of a group understand and define themselves. This research explores the way people with disabilities in the United States, with different kinds of disability identities, experience and evaluate the procedure of claiming Social Security benefits. The findings suggest that disabled people who identified with the social model of disability (as opposed to the medical‐individual models) hold a critical view of the procedure for retaining benefits. They felt they had no control over it, could not voice their opinions, were mistreated by representatives, and had to present an image that was not necessarily true of their disability. They also saw the procedure as discouraging them from participating fully in the labor market, and consequently integrating better in society, an idea that was not present among disabled people who identify with medical‐individual models. Exposing this relationship between the way people perceive themselves and the way they experience and evaluate legal procedures can contribute to the creation of better policies, while improving communication between the state and members of the disability community, along with other marginalized groups.     

从应然权利到实然权利:文化权利的著作权法保障机制研究

文化参与、文化分享与文化创新成果利益保护,是国际公约和我国宪法保护的应然文化权利.在文化权利从应然权利到实然权利的保障机制中,著作权法通过调整文化创新成果的创作、传播与利用关系,不仅使文化成果收益权经由著作权保护而得到切实保障,而且通过著作权保护条件、范围等制度设计,为公众文化参与、文化分享权利提供资源保障与行为指引,从而使宪法上应然的文化权利得到具体的部门法保障.著作权法对文化权利的保障机制主要体现在以下方面:其激励作品创作与传播的功能、机制,为个人文化参与和文化分享权利的实现提供内容保障;其作品市场化传播的利益实现机制,为公众文化知识的接触、分享和利用提供现实可能;其合理使用等著作权限制制度,为公众可以自由利用的文化空间提供保障;著作权法对作者和其他著作权人就其作品著作权充分而有效的保护,是公众文化收益权的直接保障机制,是著作权法促进文化权利实现的关键.     

Staff‐Prisoner Relationships,Staff Professionalism,and the Use of Authority in Public‐ and Private‐Sector Prisons

Prison privatization has generally been associated with developments in neoliberal punishment. However, relatively little is known about the specific impact of privatization on the daily life of prisoners, including areas that are particularly salient not just to debates about neoliberal penality, but the wider reconfiguration of public service provision and frontline work. Drawing on a study of values, practices, and quality of life in five private‐sector and two public‐sector prisons in England and Wales, this article seeks to compare and explain three key domains of prison culture and quality: relationships between frontline staff and prisoners, levels of staff professionalism (or jailcraft), and prisoners' experience of state authority. The study identifies some of the characteristic strengths and weaknesses of the public and private prison sectors, particularly in relation to staff professionalism and its impact on the prisoner experience. These findings have relevance beyond the sphere of prisons and punishment.     

Strong Rights and Disobedience: From Here to Integrity

In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so that the government would be wrong to punish anyone who exercised them. This claim raises fundamental questions about the source of obligation and the limits of legitimacy. These questions of political theory have been given surprisingly little attention by him or his critics. I examine whether strong rights make any sense and conclude that his political theory cannot even generate the minimal prima facie obligation necessary to justify coercion, and hence, law. My solution is to interpret justice in the same way as law. Dworkin resists what I call Justice as Integrity because of concerns about ethical relativism. By considering his more recent works on objectivity and moral truth, I attempt to show that Dworkin's aversion to Moral Constructivism is based on an undue fear of the uncertainty of social practices and an undue faith in the certainty of empirical observation. By reconstructing the interpretive derivations of justice I offer a method to make the idea of obligation, strong rights, and hence, law as integrity, more viable.     

The Diffusion of Rights: From Law on the Books to Organizational Rights Practices

How does law change society? To gain new leverage on this long‐standing question, this article draws on two lines of research that often ignore each other: political science research on the mobilization of law, and sociological research on the diffusion of organizational practices. Our insights stem from six case studies of diverse organizations' responses to the accommodation provisions in the Americans with Disabilities Act and related state laws. We found that different modes of exposure to the law combined with organizational attributes to produce distinct “rights practices”—styles of standard operating procedures and informal routines that reflect the understanding of legal requirements within an organization. The diversity of the organizational responses challenges simple dichotomies between compliance/noncompliance, change through deterrence/change through norms, and mobilization/nonmobilization, and it underscores the importance of combining political science and sociological perspectives on law and social change.     

Non‐Individualism,Rights, and Practical Reason

Abstract. The paper looks at an impasse with respect to the role of rights as reasons for action which afflicts contemporary legal and political debates. Adopting a meta‐ethical approach, it moves on to argue that the impasse arises from a philosophical confusion surrounding the role of rights as normative reasons. In dispelling the confusion, an account of reasons is put forward that attempts to capture their normativity by relating them to a reflexive public practice. Two key outcomes are identified as a result of this explication: first, that normative practices are instances of rule‐following; and second, that agents partaking of normative practices possess absolute value (i.e., acquire the status of persons). In light of this explication, rights acquire the status of the most general reasons that purport to guarantee the content of personhood by specifying and safeguarding conditions which enable agents to participate in public practices of universalisation.     

从认知思维到情动思维——裁判思维客观过程之研究

认知思维与情动思维是司法过程中前后相继的两种思维方式,它们在形成裁判结果的机制中行使着不同的职能,并且前者在裁判中必然要向后者发生转换。但是,法官必须对此种转换之程序、原则和结果予以合理性论证,否则,易遭受裁判恣意之诟病。     

Law From Below: Women's Human Rights and Social Movements in New York City

Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human rights, they provide social movements a kind of global law "from below": a form of cosmopolitan law that subalterns can use to challenge their subordinate position. Using a case study from New York City, we argue that in certain contexts, human rights can provide important political resources to U.S. social movements. However, they do so in a diffuse way far from the formal system of human rights law. Instead, activists adopt some of the broader social justice ideas and strategies embedded within human rights practice.     

From International Sanitary Conventions to Global Health Security: The New International Health Regulations

In May 2005, the World Health Organization adopted the new InternationalHealth Regulations (IHR), which constitute one of the most radicaland far-reaching changes to international law on public healthsince the beginning of international health co-operation inthe mid-nineteenth century. This article comprehensively analysesthe new IHR by examining the history of international law oninfectious disease control, the IHR revision process, the substantivechanges contained in the new IHR and concerns regarding thefuture of the new IHR. The article demonstrates why the newIHR constitute a seminal event in the relationship between internationallaw and public health and send messages about how human societiesshould govern their vulnerabilities to serious, acute diseaseevents in the twenty-first century.     

Hermeneutical Violence: Human Rights,Law, and the Constitution of a Global Identity

In this paper I want to analyze the process of denationalization of the law, to show how the globalization of the law can be considered as a new form of imperial control, but this time, labeled as acting for the welfare of its victims. In the first part I will analyze the national character of the law and show how it was used as an imperialistic instrument for the benefit of the imperial powers. In the second part I will show how the discourse of human rights and its universality has been the base to deny indigenous communities their right to define their own identity and how this discourse was used to destroy the old conception of sovereignty. The globalization of human rights implies the imposition of a western conception of rights, regardless of the contextual conception of the indigenous people. The discourse of human rights is part of a hermeneutical violence.     

Taking Metaregulation to the United Nations Human Rights Treaty Regime: The Case of the Convention on the Rights of Persons with Disabilities

This article argues that regulatory scholarship can be harnessed to promote human rights, in this case the rights of persons with disabilities. It argues that the regulatory regime of the Convention on the Rights of Persons with Disabilities (the Convention) establishes a human rights metaregulatory regime. It shows that the Convention delegates all of the regulatory functions to four different actors, to the effect that no single actor has the full range of regulatory competencies. The implication of this high degree of delegation is that the Convention establishes a three‐party framework whereby the interaction between the regulatee and the two regulators is mediated by an oversight body. While organically independent, each actor is functionally interdependent so that an equilibrium is established. At a time where the effectiveness of the UN human rights treaty system is under assault, this article argues that the metaregulatory regime of the CRPD provides an optimistic vision for the future of human rights treaties.