Listening to children: Participation rights of minors in Italy and the United States

This article compares laws and policies in Italy and the US regarding children's right to be heard and to engage in the life of the community. Italy has adopted a strong children's rights perspective, informed by the principles of the Convention on the Rights of the Child (CRC). The US, with its pre-modern constitution and resistance to international law, has been slow to recognise children's rights to voice and agency. The US Supreme Court has extended some due process rights to children in criminal court proceedings, but the US lags far behind Italy in recognition of children's rights to participate in civic life and collective decision-making. Child well-being rankings may reflect these differences in attitudes towards children's rights. Italy ranks significantly higher than the US on objective measures of child well-being and Italian children report superior peer and family relationships.     

Looking for needles in a haystack: Key issues affecting children's rights in the General Data Protection Regulation

The EU General Data Protection Regulation (GDPR) devotes particular attention to the protection of personal data of children. The rationale is that children are less aware of the risks and the potential consequences of the processing of their personal data on their rights. Yet, the text of the GDPR offers little clarity as to the actual implementation and impact of a number of provisions that may significantly affect children and their rights, leading to legal uncertainty for data controllers, parents and children. This uncertainty relates for instance to the age of consent for processing children's data in relation to information society services, the technical requirements regarding parental consent in that regard, the interpretation of the extent to which profiling of children is allowed and the level of transparency that is required vis-à-vis children. This article aims to identify a number of key issues and questions – both theoretical and practical – that raise concerns from a multi-dimensional children's rights perspective, and to clarify remaining ambiguities in the run-up to the actual application of the GDPR from 25 May 2018 onwards.     

CHILDREN'S RIGHTS IN EUROPEAN LEGAL PROCEEDINGS: WHY ARE FAMILY PRACTICES SO DIFFERENT FROM LEGAL THEORIES?

Debates about child custody following parental separation often have been framed in terms of a battle between the competing rights of different family members. In the United States, advocates of mothers’ rights square off against proponents of fathers’ rights, with each side claiming to truly represent children's rights. Of course, not all advocates lay claim to children's rights in contact and custody disputes merely as a tactical maneuver. Some experts believe that children are entitled to (and benefit from) their own, independent legal advocate in custody cases. In theory, at least, the position that children lay claim to a third set of independent rights is strongly held in Europe, more strongly than in many U.S. states, because of the adoption of United Nations Convention on the Rights of the Child in Europe, but not in the United States. In this article, we examine children's rights in custody disputes from a European perspective, particularly children's legal right to contact with their parents, as well as the children's right to be heard in custody and contact disputes. We find that, despite differences in legal theory, tradition, and family demographics, European countries ultimately face a familiar reality: Custody and contact disputes are, in reality, more about renegotiating family relationships than they are a matter of a mother's, father's, or child's rights.     

Financial Intelligence Units: Reflections on the applicable data protection legal framework

Financial Intelligence Units (FIUs) are key players in the current Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) legal system. FIUs are specialised bodies positioned between private financial institutions and states’ law enforcement authorities, what renders them a crucial middle link in the chain of information exchange between the private and public sectors. Considering that a large share of this information is personal data, its processing must meet the minimum data protection standards. Yet, the EU data protection legal framework is composed of two main instruments, i.e. the General Data Protection Regulation (GDPR) and the Law Enforcement Directive (LED), which provide different thresholds for the protection of personal data. The aim of this paper is to clarify the applicable data protection legal regime for the processing of personal data by FIUs for AML/CFT purposes. To that end, the paper provides an overview of the nature and goals of AML/CFT policy and discusses the problem of the diversity of existing FIU models. Further, it proposes a number of arguments in favour of and against the possibility of applying either the GDPR or LED to the processing of personal data by the FIUs and reflects on how convincingly these arguments can be used depending on the specificities of a given FIU model.     

Surrogacy,Identity, Parentage and Childrenʼs Rights – Through the Eyes of a Child

In this article I will focus on two important aspects of children's rights which are impacted by artificial reproductive technology (particularly surrogacy); being the rights to identity and the rights to legal parentage. The United Nations Convention on the Rights of the Child acknowledges the importance of a child's right to identity, to be protected from discrimination on the basis of the status or beliefs of the child's parents, legal guardians or family members. For many children born through surrogacy arrangements, they may have only one or no legally recognized parent. The adults caring for them may have parental responsibility orders but this falls well short of providing children with the benefits and protections that legal parentage does. The issue of identity can be complex. Increasingly, states have recognized the importance of children knowing the circumstances of their birth and being able to access biological and genetic information including medical information. From a child's perspective the issues of identity and parenthood are intertwined. Given the importance of identity, more needs to be done to ensure that identifying information about children born as a result of artificial reproductive technology is properly stored and readily accessible for these children. Denying a child legal parentage when there are no concerns about the care being provided by their parents cannot be justified when considered from a children's rights perspective.     

Children's right to be educated for tolerance: minority rights and inclusion

States do not make a genuine commitment to peace where children's right to be educated for tolerance is denied. Education for tolerance is considered a central aim of education, as set out in Article 29 of the Convention on the Rights of the Child (CRC). Hence, states are obliged under the convention to create conditions conducive to such an education. Such conditions undoubtedly include providing an opportunity in an educational setting for some level of interaction between children of different backgrounds (while still maintaining whatever educational programmes are deemed necessary for the preservation of the culture of various minority groups). To eliminate the opportunity for any level of educational integration between children from the dominant group and from various national minority groups or other identifiable groups (such as disabled and non-disabled children, citizen and immigrant or child refugee groups) is to infringe upon children's fundamental human right to free association. Such an association is necessary for children's positive mental and spiritual development. The courts have unfortunately been inconsistent in protecting the right to a tolerant educational setting since they often regard children's education rights as subsumed under parental liberty rights.     

论联合国豁免的放弃

联合国组织在一定条件下放弃豁免,是《联合国特权与豁免公约》及有关国际法律文件明确规定的一项国际法律制度,这项制度美系到相美国际组织能否享有豁免以便履行职能和实现目的。同时也关系到与国际组织有关的其他各方,尤其是与国际组织交往的私人在国际组织一旦侵犯其权利的情况下能否得到救济。因此,国际组织放弃豁免是一项非常重要的国际法律制度。联合国豁免的放弃必须由其有权机关作出相应的意思表示。不论是民事行为,还是刑事行为,其豁免都是可以放弃的。联合国等国际组织放弃豁免的权利。同时也构成其必须履行的一项义务。     

A voice or a choice? Children’s views on participating in decisions about post-separation contact with domestically abusive fathers

ABSTRACT

The United Nations Convention on the Rights of the Child explicitly calls for children to be granted the right to participate in legal proceedings that affect them. Despite this legal obligation and an evolving consensus that recognises children as social and competent actors, this rhetoric has struggled to achieve translation into meaningful practice reality, particularly when decisions are being made about contact arrangements for children where there has been a prior history of domestic violence. Drawing on the narratives of children who participated in three separate research projects in Ireland between 2009 and 2015, this paper will consider the manner in which they were involved in the decision-making process and the extent to which their views were ascertained and their voices heard. This paper concludes by raising the key question of how the child’s best interests can be served if the child’s views are not sought, heard or considered.     

论没收国际合作中的资产返还问题

资产返还是没收国际合作领域中对没收资产进行处置的方式之一,其依据在于联合国两大公约,即2001年的《联合国打击有组织犯罪公约》和2003年的《联合国反腐败公约》。资产返还主要是基于两种原因：基于合法所有权的返还和基于赔偿性质的返还。事实上,被请求国在返还资产时可以考虑执行没收的费用,还可以考虑基于特殊用途的其他方式。     

User review portability: Why and how?

User reviews of products on the e-commerce platforms are a critical determinant of inter-platform competition, as a large number of consumers base their purchasing choices on the related reviews written by other users. The network effects between the number of reviews and new users give a sustainable competitive advantage to incumbent platforms. While business literature has recognised the commercial value of the user reviews, legal scholarship has paid little attention to levelling the playing field between incumbents and new e-commerce platforms by exploring the portability of user reviews. This paper bridges this gap. We explore the possibility of porting user reviews through two legal mechanisms—first, traditional Intellectual Property law; second, the new Right to Data Portability (RtDP) as enshrined in the GDPR. After recognising the limitations of these mechanisms in enabling the portability of reviews, we suggest that pure data aggregators, such as Personal Information Management Services (PIMS), are best placed to make user reviews available to multiple platforms.     

UNCROC and the prevention of childhood obesity: the right not to have food advertisements on television

This article discusses how legal rights-based discourse could inform the response of Australian State and federal governments to the increasing prevalence of childhood obesity. The authors contend that the principles in the United Nations Convention on the Rights of the Child (a treaty which has been ratified but not implemented) are capable of providing a basis for a legislative program to prevent childhood obesity. It is argued that an approach to legislation which is grounded on the basis of children's rights would require that there be restrictions on advertising food to children. The authors set out specific proposals for legislative reforms which the federal Parliament could enact to implement the Convention so as to restrict advertising to children. The scope of the discussion is then expanded to consider the implications of rights-based discourse in broader public health contexts.     

《联合国反腐败公约》中的引渡制度探析

<联合国反腐败公约>是目前反腐败方面最重要的国际法律文件,它筑起了一道强大的国际反腐法律强网.实现对腐败犯罪的引渡是国际反腐败的一种自然延伸.而<联合国反腐败公约>关于引渡的规定既是对缔约国的要求,也是各国进行国际合作的有效路径.为了实现对腐败犯罪的引渡,接受"死刑犯不引渡原则"则是我国的上上选择.     

Data protection,scientific research,and the role of information

This paper aims to critically assess the information duties set out in the General Data Protection Regulation (GDPR) and national adaptations when the purpose of processing is scientific research. Due to the peculiarities of the legal regime applicable to the research context information about the processing plays a crucial role for data subjects. However, the analysis points out that the information obligations, or mandated disclosures, introduced in the GDPR are not entirely satisfying and present some flaws.In addition, the GDPR information duties risk suffering from the same shortcomings usually addressed in the literature about mandated disclosures. The paper argues that the principle of transparency, developed as a “user-centric” concept, can support the adoption of solutions that embed behavioural insights to support the rationale of the information provision better.     

Climate Change,Wildlife Movement and the Law: A Case Study from New Zealand

The United Nations Framework Convention on Climate Change mandates parties to prepare for adaptation to climate change. This is of direct relevance to the management of wildlife. Climate change is likely to alter and/or expand the habitats of wildlife and may make the conditions within existing habitat ranges unsuitable for the continued existence of a species. Of necessity, efficacious adaptation must attempt to address this likelihood. Using New Zealand as a case study, this paper considers the range of present legal instruments that might be utilized within that nation to manage the movement of wildlife and identifies any lacunas that should be addressed. The conclusions will be of interest to any nation wishing to protect wildlife from the adverse effects of climate change.     

The Legal Position of the Married and Unmarried Father Under English and Dutch Law: Sharing Parenting or Just Going Dutch?

This article addresses the issue of the legal position of the married and unmarried father under English and Dutch law. The legal position under English Law in the UK for the married and unmarried father may be familiar to English family lawyers. The situation for unmarried fathers can be seen as more 'precarious' and less legally secure than that of the married father in terms of the legal recognition of fatherhood and the exercise of parental responsibility. Fathers who are not married to the mothers of their children are not recognised as 'fathers' in law in the same way as the married father. They will possess the automatic parental responsibility that the married father has, as a result of the implementation of new legislation which acts as a 'gateway' to the effective exercise, in legal terms, of 'fathering' activities. Whilst there have been some reforms, this are set in the context of problems and difficulties in regulating unmarried relationships in general. There is disparity in legal treatment between the married and the unmarried relationship, fatherhood in particular, but this distinction shows signs of diminishing, as it has done under Dutch law. In The Netherlands, as in a lot of other European countries, family law has been subject to continual law reforms, as a consequence of social developments. Also decisions of the European Court of Human Rights have forced the Dutch government to adapt legislation. Due to the equality principle, many benefits of marriage are now also granted to unmarried people. Since the extended law reform in 1998 the terms 'legitimate' and 'illegitimate' child – for children born inside and outside of marriage – no longer exist. Instead the term 'family ties' was introduced. This article will discuss the major issues which concern the legal position of the married and the unmarried father under English and Dutch law.     

The rights of people with an intellectual disability in The Netherlands: from restriction to development

The purpose of this article is to discuss whether the right to self-determination is the only and the best principle in health law for care providers to support their clients with an intellectual disability, or whether other principles such as the right to development, the right to good care and the right to protection might lead to a better protection of the rights of clients in this field of care. The right to self-determination is the central principle in the Dutch Psychiatric Hospitals (Compulsory Admissions) Act, which at times seems less than beneficial to the legal position of persons with an intellectual disability. The question is whether a new (alternative) legal framework, in which the focus shifts to the right to good care and the right to development, might improve the legal position of people with an intellectual disability.     

The United Nations Convention on the rights of persons with disabilities

The United Nations Convention on the Rights of Persons with Disabilities, which came into force on 3 May 2008, marks the culmination of over five years of negotiations between States Parties and non-governmental organisations as to what constitute the human rights of and governmental obligations to individuals with disabilities. It differs from other Conventions in that, while it still sets out general rights, it also details the steps that should be taken to ensure equality of treatment. This column provides a general overview of the Convention, focusing in particular on Art 25 which sets out the right to health and Australia's obligations under the Convention.     

Intellectual Property Counterfeiting and Piracy – Response of Small Commonwealth Jurisdictions∗

This article provides an analysis of some recent developments relating to Constitutional law in Jamaica, including the legal issues arising from tied elections and the dual nationality of parliamentarians. It also discusses a case relating to the failure to incorporate the United Nations Convention on Transnational Organized Crime (the Palermo Convention). In this case, though the Palermo Convention contemplates investigations by agents of one country on the territory of another for certain crimes, one state party found it was unable to carry out such investigations on the territory of another. Although the latter country, a CARICOM member state, was also a party to the Convention, it had not enacted the required implementing legislation     

《2010年国际贸易术语解释通则》与《销售合同公约》货物风险转移原则的牵连性与独立性

《联合国国际货物销售合同公约》作为国际贸易的统一实体法,创设的货物风险转移原则较为笼统性,因而为最新的国际贸易术语统一惯例《2010年国际贸易术语解释通则》预留了足够的空间。尽管强制法限制惯例的约定,但两种规则并不冲突,彼此之间相辅相承。秉承公约的传统,同时利用国际贸易惯例的功能,改革与完善国际货物买卖和运输交接货的责任界定与风险转移,是国际商会对于《2010年国际贸易术语解释通则》的杰出奉献。     

对我国地方立法中职务犯罪预防措施的评价——以《联合国反腐败公约》为视角

《联合国反腐败公约》在强调打击腐败犯罪的同时，更强调对腐败犯罪实施综合预防战略。《公约》设立专章，对预防腐败措施作了系统的规定。目前，我国尚无预防腐败措施方面的中央级专门立法，但是，许多省、自治区、直辖市和较大市都进行了预防职务犯罪的地方立法。以《公约》为参照，借鉴国际经验，检视我国地方立法中职务犯罪预防措施，有利于促进我国预防腐败的制度建设和工作机制的进一步完善。