Of Rights and Rhetoric: Discourses of Degradation and Exploitation in the Context of Sex Trafficking

International condemnations of people trafficking (particularly of women and girls for prostitution) as a human rights violation have proliferated in recent times. The deployment of human rights in this context has been supported by those who seek to challenge narrow victim hierarchies, but these accounts fail to clearly articulate which particular aspects of the activity violate which particular rights, and how. This article examines the applicability of protections against slavery and inhuman/degrading treatment, arguing that, in the context of the diversity and complexity of contemporary people trafficking, their limitations become apparent. The final part considers the concept of exploitation as an alternative basis for grounding a human rights claim. It cautions that invoking this concept without further elaboration (particularly in relation to the relevance of harm and consent) may be counter-productive, both in terms of theoretical clarity and practical implementation.     

Towards a Comprehensive Legal Aid System in Bangladesh: The Need for Early Access to Legal Aid in Criminal Proceedings

The government-funded legal aid system in Bangladesh has been undergoing development. Bangladesh has guaranteed the right to legal assistance in different laws and particularly in the Legal Aid Services Act (LASA) with specific and greater detail. Moreover, it acceded to the International Covenant on Civil and Political Rights (ICCPR) in 2000. In this context, the purpose of this article is to examine the current practice of the country with respect to the granting of early access to legal aid in criminal proceedings in light of international human rights standards. The article indicates that the prevailing problem of arbitrary arrest and pre-trial detention of those who are living in poverty is a matter of grave concern in Bangladesh. The author, therefore, recommends a mechanism to ensure early access to legal aid in the government-operated legal aid framework, as a fundamental aspect of a comprehensive system, for the protection of the interests of those who have been arrested or detained prior to being interviewed and formally charged of a criminal offence.     

Do We Need Unicorns When We Have Law?

Abstract.  Theoretical justifications of human rights have been troubled by many criticisms and objections. It has been objected that the source of human rights is unclear as is the meaning attached to human rights. Yet today many human rights have been adopted in positive law. Law students today need to learn about this positive law of human rights and may consider that those debates in human rights theory are pointless. This article examines the extent to which the positive law of human rights answers these questions satisfactorily. It concludes that positive law offers several important answers to these criticisms, but suggests they cannot replace the need for a normative justification. The article concludes that approaches which integrate theory and positive law are fruitful avenues of inquiry.     

Human Rights Law: Australia and Slovenia

The human rights legal framework of Australia and Slovenia are vastly different. This article explores the evolution of human rights laws of Slovenia and Australia. While the study and comparison of Australia and Slovenia is uncommon, and not often used as an example to highlight aspects of human rights, both states have a long history of cooperation. The first Slovenian reportedly arrived in Australian in 1855. Since then, and particularly following World War Two, there has been a steady stream of Slovenian’s migrating to Australia. Slovenia upon independence prepared a new constitution that reflected the democratic human rights of the European Union, in 1991, and ratified the European Convention on Human rights in 1994. This article highlights how the opportunity Slovenia had to develop a new constitution, they were able to include many human rights that are often found in legislation. Australia’s constitution came into effect in 1901. Being more than 100 years old, there has been no attempts to revise the Australian constitution and expand the current express human rights. This article will determine whether the European Union’s human rights laws have not only influenced Slovenia’s human rights laws, but also Australia’s. This article suggests that Australia has much to learn from the Slovene experience, but is constrained by its constitution and region. This article highlights how a state formed in recent times, has had the opportunity to develop a constitution that reflects modern day human rights while an older state with longer established democracy has fallen behind in its protection of human rights.     

Reluctant Radicals: How Moderates Shape Movements for Social Change

This essay reviews three books within the southern history literature on the white moderate's response to the civil rights movement; Kevin Kruse's White Flight: Atlanta and the Making of Modern Conservatism (2005), Matthew Lassiter's The Silent Majority: Suburban Politics in the Sunbelt South (2006), and Jason Sokol's There Goes My Everything: White Southerners in the Age of Civil Rights, 1945–1975 (2006). I examine how white moderates impacted the struggle for African American civil rights, and explore how this dynamic can help us understand the trajectory of the current debate over gay rights in the United States. I argue that while the US public ultimately came to support equal rights for African Americans, and has grown more tolerant of gay rights recently, they have been willing to do so only when these rights claims are framed as benefiting “deserving” segments of these populations. This shows that rights are, to some extent, contingent resources, available primarily to those citizens who fit certain ideal types, and suggests that those individuals who are unwilling (or unable) to live up to this ideal may ultimately fail to benefit from these movements.     

The Changing Face of Corporate Liability – New Hard Law and the Increasing Influence of Soft Law

The first frameworks defining standards of human rights protection specifically for business enterprises were non-binding “soft law” like the UN Guiding Principles on Business and Human Rights. In recent times, a “hardening” of corporate human rights law has taken place. Several acts of “hard law” have been implemented at a national and EU level. This article provides an overview of the most important ones. The “hard law” provisions differ in their scope: some obligate companies to report on human rights, others stipulate concrete obligations to conduct human rights due diligence. Another way of tackling the issue of human rights compliance has been demonstrated by the prosecution of companies in the United States. While procedural guidelines abstractly stipulate an effective compliance system to be a mitigating factor, the US Department of Justice regularly defines concrete compliance obligations in deferred or non-prosecution agreements. This development could lead to comprehensive liability for negligence due to organisational and monitoring deficiencies. But who defines the standards? This article examines how the changing practice of human rights compliance may have “feedback effects” on hard law, particularly by changing the scale of negligence. Regarding the lack of effectiveness of some due diligence measures, especially in the “certification industry”, it is then asked how legislation may proactively exert influence by defining effective CSR instruments necessary to prevent civil and criminal liability. Using the example of German law, a proposal is made to implement an obligation of human rights due diligence in “hard law” and, simultaneously, set up an independent expert commission that drafts guidelines specifying the necessary measures for different kinds of companies.     

Codes of professional conduct for Australian Defence Force military physicians: evenomating the serpent?

The scandal of health professionals' involvement in recent human rights abuses in United States military detention centres has prompted concern that Australian military physicians should be well protected against similar pressures to participate in harsh interrogations. A framework of military health ethics has been proposed. Would a code of professional conduct be a partial solution? This article examines the utility of professional codes: can they transform unethical behaviour or are they only of value to those who already behave ethically? How should such codes be designed, what support mechanisms should be in place and how should complaints be managed? A key recommendation is that codes of professional conduct should be accompanied by publicly transparent procedures for the investigation of serious infractions and appropriate disciplinary action when proven. The training of military physicians should also aim to develop a sound understanding of both humanitarian and human rights law. At present, both civil and military education of physicians generally lacks any component of human rights law. The Australian Defence Force (ADF) seems well placed to add codes of professional conduct to its existing ethical framework because of strong support at the highest executive levels.     

Access to justice: a new approach using human rights standards

This article details a trial of a new approach to measuring access to justice that utilises human rights instruments as the reference point. It involves an examination of people's actual experience of the justice system using human rights standards as the benchmark. The research project selected the right to income security. The project trialled a range of methods gathering data about how people have been treated in the Australian social security system and how they would expect to be treated if there was a human right to social security in Australia. This data is assessed against the set of standards developed to measure the enjoyment of the right to social security. The trial suggests that without knowledge about human rights and legal rights, without the confidence to exercise those rights and without the capacity or capability to seek or find help it is unlikely that people will realise their rights and accordingly access to justice is placed in question. The research methodology has the potential to be a useful model to conduct further access to justice research.     

Deportation, Detention and Medical Intervention

In the UK the foreign national prisoners who have breached immigration rules suffer deprivations from which the ordinary citizens are exempt. Their subjection to prison regimes often on pain of deportation leads to psychological illnesses that cause them long term damage. The deportation regime that arises by default under the Border and Immigration Act 2007 has made it difficult to avoid prison for the breach of immigration rules. The research published by NACRO shows that it can lead to trauma because there is duress accompanied by an uncertainty of fate. The decision by the Court of Appeal in R (Medical Justice) v Secretary of State for the Home Office (2011) has brought this issue of deporting ill patients into the limelight. There are expert reports that reveal that those foreign nationals who are refused permission to stay are at risk from psychiatric illnesses when they are detained. The findings are that the mental illnesses are particularly severe in the most vulnerable prisoners who develop symptoms of long term mental disease. It is critical for the medical professionals to consider their involvement at an early stage when they will be able to supervise and diagnose illness before there is damage. This is particularly the case as the NHS treatment is denied to prisoners who are foreign nationals which is makes it necessary to implement a strategy with local agencies to prevent the onset of debilitating illnesses.     

Comparative criminal justice

Present state of electronic technology makes it possible for state authorities to control citizens' activity in every moment oh his/her life. On the other hand none of us want to be controlled this way and democratic rights shall guarantee our privacy to be preserved. Yet proactive police techniques can be useful in protecting us against those of our co – citizens who do not respect the legal order. The criminal investigation nowadays cannot exist without using proactive techniques – no matter if it takes place in Poland or USA. Thus the problem emerges how to choose when these techniques should be used and who should make this decision. The key-guarantee of respecting human rights in this case is external control of police activities. Proactive techniques are usually kept secret; therefore control seems to be impossible. Disclosure in criminal trial is the necessary condition for preventing abuses. Post fact revealing of all the actions taken by the Police is the best way to ensure legality. Both Polish and American legal systems try to balance the right to a fair trial and efficiency of an investigation. Surveillance, infiltration and police "provocation" are used in both countries but the legal solutions are quite different; especially considering checks and balances. It seems that polish legislator intentionally omitted most strict limitations as they cause problems for state authorities. Police lobby must have been much more effective than "human rights" lobby. Analyzing the level of protection of the citizen during criminal trial, it must be noticed that current American solutions are much more appropriate.     

Information rights and donor conception: lessons from adoption?

This article reviews the Australian experience in providing information rights for people separated through adoption, and considers its relevance in adjusting the competing interests of those involved in donor conception. The Australian laws, which differ from State to State, create information rights for adults who have been adopted, and also--with more qualifications--for other family members, such as birth parents and siblings. Some laws also seek to protect privacy, notably by use of the "contact veto". The author argues that the review of the Australian laws provides strong support for the rights of donor offspring, when adult, to information about their genetic origins. It also raises important questions about the rights and interests of other family members involved in donor conception, and how they might be accommodated.     

Race and Law in Fortress Europe

The universality of human rights is undermined by the principle of territorial supremacy. This allows member states of the EU to discriminate against those who are not citizens of the Union. Moreover, the European Convention on Human Rights and the EC Race Directive are incapable of redressing collective racial or ethnic disadvantage because they do not provide for the enforcement of positive social, economic and cultural obligations. These limitations are assessed in the light of current political and legal developments, using as the main illustration the case of the European Roma. An analysis is provided of obligations to respect, to protect and to fulfil social rights, which could be used when challenging the actions of public authorities and securing access for individuals to public facilities and services. An inclusionary approach would emphasise that equality is central to human rights, and that 'outsiders' such as migrant workers and asylum-seekers have human rights.     

Allies Already Poised to Comply: How Social Proximity Affects Lactation at Work Law Compliance

This study demonstrates how legal compliance may be better achieved when organizations include individuals who will advocate for newly codified rights and related accommodations. To understand compliance with a new law and the rights it confers, this article examines as its case study the Lactation at Work law, which amends the Fair Labor Standards Act to mandate basic provisions for employees to express breast milk at work. In particular, this study interviewed those organizational actors who translate the law into the policies affecting workers' daily lives: supervising mangers and human resources personnel. Those studied in this article were “Allies Already:” friends or relatives of breastfeeding workers, or ones themselves, who held pro‐breastfeeding values and understood the complexities of combining lactation and employment. They mobilized within their organization to comply with the law swiftly and fully—often even overcomplying. This article demonstrates how heightened compliance, particularly with new laws, may be achieved even without directly affected actors mobilizing their own rights if allies champion needed accommodations.     

HIV/AIDS and human rights revisited

In their article, Sofia Gruskin and Daniel Tarantola demonstrate how, as the number of people living with HIV and with AIDS continues to grow in nations with different economies, social structures, and legal systems, HIV/AIDS-related human rights issues are not only becoming more apparent, but also increasingly diverse. In the 1980s, the relationship of HIV/AIDS to human rights was only understood as it involved people with HIV or AIDS and the discrimination to which they were subjected. The concerns included mandatory HIV testing; restrictions on international travel; barriers to employment and housing, access to education, medical care, or health insurance; and the many issues raised by named reporting, partner notification, and confidentiality. Almost 20 years into the epidemic, these issues remain serious and most often have not been resolved. In the 1990s, however, there was increased understanding of the importance of human rights as a factor in determining people's vulnerability to HIV infection and their consequent risk of acquiring HIV infection and their chances of accessing appropriate care and support. And most recently, human rights have also come to be understood to be directly relevant to every element of the risk/vulnerability paradigm. Gruskin and Tarantola identify three situations and three levels of governmental obligations that should be considered when identifying the specific needs and related rights of individuals in the context of HIV/AIDS. They conclude that policymakers, program managers, and service providers must become more comfortable using human rights norms and standards to guide and limit government action in all matters affecting the response to HIV/AIDS; and that those involved in HIV/AIDS advocacy must become more familiar with the practicalities of using international human rights law when they strive to hold governments accountable.     

Legal rights and communicable disease: AIDS, the police power, and individual liberty

The policy debate over AIDS has focused on how to balance the rights of individuals who have the disease against the rights of the public. This paper examines the nature of both sets of rights by analyzing the development of public health law and its dominant visions today. The article argues that while once public health rights implied a vast reserve of community authority and obligation to prevent illness, today the rights of the public and those of individuals are seen as being in opposition. Public health jurisprudence now presupposes that illness is primarily a matter of individual concern. In this view, the science of medicine mediates the relationship between the individual and the public. This understanding of rights protects some of the interests of infected individuals, but is inadequate for addressing many of the major problems raised by the AIDS epidemic, particularly the spread of infection among the uninfected.     

Diagnostic and risk profiles among civilly committed sex offenders in Washington State

Since 1990, 17 states have passed legislation allowing for the civil commitment of a small number of sex offenders who are deemed at a particularly high risk for reoffense. Despite the very public and controversial nature of these laws, little is known about the individuals who are detained pursuant to them. The current article presents data on 190 civilly committed and detained sexually violent predators in Washington State. These sexual offenders suffer from a variety of mental illnesses. The modal offender is diagnosed with both an Axis I and an Axis II disorder. Furthermore, these offenders are at moderate to high risk for reoffense and present with a significant degree of psychopathy.     

Re Edwards (2011) 4 ASTLR 392: who owns a dead man's sperm?

Re Edwards (2011) 4 ASTLR 392; [2011] NSWSC 478 adds to the small line of cases to have considered whether a woman can not only require medical staff to remove sperm from her dead male partner, but whether she is justified in terms of law and international human rights to use it to create children. In this case a Justice of the New South Wales Supreme Court framed the issue as "what right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child?" He did so, despite the manifest ambiguity and difficulty in characterising the legislative rights in this case, without referring to substantive human rights obligations under international Conventions to which Australia is a ratifying party (particularly Art 10 of the United Nations International Covenant on Economic, Social and Cultural Rights and Art 23 of the United Nations International Covenant on Civil and Political Rights. Technological advances such as those creating the possibility of capturing a dead person's sperm by electro-ejaculation and creating children by subjecting it to intracytoplasmic sperm injection in connection with in vitro fertilisation have altered the balance of individual and social interests in deciding who should be regarded as owning a dead man's sperm and how that relates to basic common law rights of bodily inviolability without free consent. It is to be regretted that in jurisdictions lacking relevant constitutional human rights, or legislation requiring coherence with international human rights, judges do not avail themselves in cases of statutory ambiguity of interpretative insights to be gained from legally binding human rights treaties to which Australia is a party.     

The Arab Spring and the Notion of External State Sovereignty in International Law

The notion of external sovereignty is not one that is free from contestation. Yet, it is defined in this article broadly as a state’s independence and exclusive authority over its territory and those residing upon it. The events of the Arab Spring have challenged this form of sovereignty with human rights and humanitarian law violations being discussed in various quarters. This article discusses the notion of external state sovereignty in light of these events. It dissects the notion into various relevant constituent elements of sovereign equality, protection from intervention, and the protection from the use of force and discusses how they can be discerned in the midst of the conflicts in the Arab Spring, in particular those in Libya and Syria. However, it also assesses how the events of these conflicts have impacted upon these various elements of the notion. In this respect, while it portrays external sovereignty as an enduring concept, aspects of it have been questioned and its contours have been challenged during the course of the Arab Spring. More specifically the emergence of the Responsibility to Protect concept has influenced the way in which various forms of intervention have been undertaken and judged by the international community.     

Australian Rules: The Rise of Rights and the Demise of the Right

Over a number of years there has been a public debate in Australia over the place of legal rights in the struggle for Indigenous economic, social and cultural gains. Most Indigenous leaders have called for a rights agenda as a solution to Indigenous disadvantage. However, one leader has been a vocal critic of this approach. This paper considers the possibility that although the debates may fundamentally represent different views as to how best to improve conditions for Indigenous Nations, they also represent differing approaches to harnessing the support of mainstream Australia in a politically conservative environment. In coming to this position, I am reminded of the arguments put by proponents of the Critical Legal Studies movement in US, that rights are merely abstractions, and the counter by Patricia Williams, a Critical Race Theorist, that as a result, they can be framed in a variety of ways and can take the form required by the community in which they are found. In Australia, minority groups must find an indexically-open vehicle, fitting to the Australian rhetorical structure(s), to represent their struggle for economic, social and cultural rights. Tracey Summerfield is a white woman born in Perth, Western Australia. Thanks to Stephanie Monck, a Kungarakan/Warramungu woman from the Northern Territory, who provided assistance and feedback on an earlier version. The views expressed here are, of course, those of the writer alone.     

国际人权法上的迁徙自由和移徙工人的权利保护--以中国农民工为例

经济全球化促使人们充分享有迁徙自由这项不可剥夺的基本人权的同时,更促成了移徙工人的群体规模,从而使移徙工人权利保护成为国际人权法的一项重要内容。以中国农民工为例,移徙工人在其迁徙地的经济和社会发展中作出了巨大的贡献,但其所应当得到的与其所付出的存在着严重的不均衡态势。从长远来看,必须高度重视人类社会生态链中移徙工人权利保护这一环。