公共产品分享权利及其法律保障

基于国家提供公共产品的目的,公共产品的分享最终可归结为满足公民的生存需要和发展需要,并以此界分出生存性权利与发展性权利。由于需求主体与供给主体的特殊结构,公共产品分享权利与传统意义上的法律权利相比,体现为一种非对称的权利义务关系,其可诉性较弱,司法诉讼并非其权利保障的唯一路径,议案、听证、信访等制度对于公共产品分享权利的保障同样具有现实意义。     

The Time of Law: Human rights between law and politics

This article discusses the presuppositions and consequences of different forms in which successive Chilean governments have tried to ‚come to terms’ with a legacy of terror usually designated as ‚human rights violations’. Thus a political strategy centred in a body like a truth and reconciliation commission is compared to a judicial strategy of individualising perpetrators and punishing them according to the rules and principles of normal criminal law. Having distinguished these strategies, the article maps them onto two conceptions of human rights: one political (constitutive of the political community) and one legal (grounding actionable claims against others). The thesis is then defended that law cannot grasp the political meaning of human rights, and thus cannot grasp the full political meaning of terror.This paper belongs to a broader research project funded by the Chilean fund for Scientific development, FONDECyT (Projecto 1010461).     

农地征用及农民权益保护的法学思考

本文对农地的权属进行了界定,提出农地权属认定是决定农民土地权益的深层原因的观点,并进一步阐释了农民土地权利出现残缺的具体表现;以法学的视角深入分析了农地转为城市用地过程中产生的巨额利益及其分配格局;探讨了农地征用制度的改革路径,对完善农地征用法律制度、切实保护失地农民权益具有重要的理论价值和实践意义。     

Barcelona 2002: law, ethics, and human rights. Juggling individual and collective concerns with respect to HIV/AIDS policies

Efforts to prevent the spread of HIV infection sometimes give rise to tensions between individual and collective rights. This article, based on a presentation by Nelson Varas-Díaz (abstract TuOrG1171), explores these tensions in the context of the laws and policies of eight Latin American countries: Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Nicaragua, Panama, and Puerto Rico. The article describes five elements of the response to HIV/AIDS in which tensions between individual and collective rights have surfaced: the participation of people living with HIV/AIDS on national commissions; the ability of HIV-positive persons to access antiretroviral medications; HIV-antibody testing practices; the confidentiality of health information; and the rights and duties of people living with HIV/AIDS. The article concludes that the success of programs designed to prevent the spread of HIV infection depends on the ability of societies and governments to balance the tensions between individual and collective rights.     

Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.     

Obesity, courts, and the new politics of public health

Health care politics are changing. They increasingly focus not on avowedly public projects (such as building the health care infrastructure) but on regulating private behavior. Examples include tobacco, obesity, abortion, drug abuse, the right to die, and even a patient's relationship with his or her managed care organization. Regulating private behavior introduces a distinctive policy process; it alters the way we introduce (or frame) political issues and shifts many important decisions from the legislatures to the courts. In this article, we illustrate the politics of private regulation by following a dramatic case, obesity, through the political process. We describe how obesity evolved from a private matter to a political issue. We then assess how different political institutions have responded and conclude that courts will continue to take the leading role.