Human and fundamental rights: What are they about?

Conclusion Human rights, distrusted by Bentham, through emergence ofGesellshaft, have sometimes been identified with rights of market men and gradually on an ad hoc basis and so have been given a relational or relativist character for that reason. Such a view ignores the test of humanness or the tele of human rights surviving any political association and the need for full development of human personality as an autonomous being inherent in full respect for all as moral persons. This disposes of the view of human rights in terms of rules of a game, or of connection between human rights and human action, or of the standard of the prudent man or, finally, of the ideology of the rising bourgeoisie. Equally, that very test of humanness disposes of criticisms of the human rights theory based on a concern for implementation of rights, on concentric circles based on the specific and concrete, on the impossibility of liking the billions, on the distinction between negative, positive and administrative rights, on the condition of being able to make valid claims and thereby denying human rights to the deprived millions in poor countries, on the social justice model, on the potential for violence and conflict and, finally, on the vagueness or subjectivity of human rights. An eclectic synthesis not between good and evil nor between right and wrong but between the extremes of the views presented in such critical explanations e.g. between the New Right and the New Left and between Hobbes and Rousseau) is what is needed in order to present a workable theory of human rights in the modern-day world.     

Human rights in Vancouver: do injection drug users have a friend in city hall?

In april 2003, the Vancouver Police Department (VPD) initiated a crackdown in the city's Downtown Eastside, an area frequented by drug users and the site of one of the developed world's worst AIDS epidemics. Human Rights Watch (HRW) visited the city and issued a report documenting first-hand accounts of unnecessary use of force by police officers and other human rights abuses. In this article, HRW staffers Joanne Csete and Jonathan Cohen describe how the initial euphoria that greeted the election of Vancouver Mayor Larry Campbell has worn off; how a crackdown that was supposed to be aimed at drug traffickers had the effect of driving drug users away from health and harm-reduction services; and how both the VPD and city tried to discredit the HRW report. Finally, the authors discuss how concerns about the VPD have led to official complaints being filed, and they question whether police forces should be allowed to investigate themselves.     

Human rights and HIV/AIDS in the context of 3 by 5: time for new directions?

Over the last decade, the success of the human rights-based approach to HIV/AIDS has been spotty, says Mark Heywood. In this feature article, the author describes the challenges that remain in implementing a human rights approach. He presents an analysis of questions raised by De Cock et al concerning the applicability of the human rights approach. The author argues that human rights advocacy needs to continue, but that new directions are required. The article outlines new directions in the areas of (a) confidentiality and openness, (b) HIV testing, and (c) health systems. The author concludes that the most serious threat to human rights remains the unwillingness of national governments to take all necessary measures to build health services and prevent epidemics.     

Adult guardianship: human rights or social justice?

Adult guardianship in English-speaking countries has its roots firmly planted in the protective parens patriae principle. In the last 20 years, in response to societal changes and international developments, concerns about human rights have fundamentally challenged the historic basis of guardianship. This article argues that social justice offers a better framework than human rights for adult guardianship legislation.     

Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.     

A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment

The 1990s brought about a change in the international law of foreign investment due to the primacy achieved by the tenets of neo-liberalism. They drove concerns about the environment and poverty away from the concerns of the law and gave priority to the interests of multinational corporations by enhancing their ability for movement of assets and the absolute protection of these assets through treaty rules. The regime created by this law was operated through secure systems of dispute settlement through arbitration which also enabled the stabilization of these rules. In the process, private power of a section within the hegemonic state was able to subvert international law through the use of low order sources of the law and secure a system of investment promotion and protection. The restoration of the more universal themes of environmental protection and poverty alleviation is necessary. This paper outlines the developments that accentuated the sectional interests of multinational capital and explores the means by which a change that reflects the global interests could be effected.

Consensus decision-making in CCAMLR: Achilles’ heel or fundamental to its success?

International Environmental Agreements: Politics, Law and Economics - The Commission for the Convention on the Conservation of Antarctic Marine Living Resources is the body responsible for the...     

Forwards or backwards? New directions in Danish patients' rights legislation

The Danish Patients' Rights Act from 1998 was the first comprehensive piece of legislation addressing the basic legal values and principles governing the relation between patient and the health care services. Since the adoption of the Act there has been continuous legislative activity in the field, and the objective of the article is to discuss how recent developments in Danish patients' rights legislation shall be interpreted in terms of balancing interests of patients towards interests of society and the health care professions.     

The European Arrest Warrant in a context of distrust: Is the Court taking rights seriously?

During a time of distrust towards some Member States, the position of fundamental rights when executing a European Arrest Warrant (EAW) has been strengthened. The article considers whether the European Court of Justice (ECJ) is now ‘taking rights seriously’ as regards the EAW. To this end, it employs a theoretical and contextual approach that supports a comprehensive analysis of case-law. First, the article borrows from a theory of rights as trumps and observes that rights are no longer treated as norms with no special force that are in the way of cooperation interests. Second, the article offers a contextual exegesis of this trajectory, by mapping drivers of distrust and evaluating their impact on the position of rights. Through contextualisation, it is argued that distrust, although limited by its circumstances, has offered a compelling opportunity for the ECJ to take rights seriously, paving the way forward for future case-law.     

Sex offender laws in the United States: smart policy or disproportionate sanctions?

In the 1990s, the United States began enacting a series of laws to monitor and supervise sex offenders living in the community. These evolved to include Internet registries of sex offenders, sex offender residence restrictions, GPS monitoring, and even civil commitment of sex offenders at the conclusion of their criminal sentences. Though other countries have enacted legislation to monitor sex offenders, none have implemented laws impinging on the civil liberties of offenders to the extent of those in the United States. This article examines the basis of the US laws and their challenges, provides an overview of their efficacy, and compares the US approach to those of other countries.