text:
Laws doi: 10.3390/laws6030015
Authors: Blake Connell
Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes 'the adoption of children' as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is yet to consider whether CRPD signatory states have brought their respective adoption regimes in line with their obligations under art 23 of the CRPD. Using the laws of the Australian state of Victoria by way of case study, this article aims to shed light on the difficulties people with disabilities still face when attempting to adopt children. In terms of methodology, this article conducts an interpretive critique of Victoria's adoption law against art 23 of the CRPD, which it interprets mainly through the lens of the social model of disability. Ultimately, this article finds that Victoria's adoption framework closely resembles the adoption regimes of many other CRPD signatories, yet it clearly fails to uphold Australia's obligations under the CRPD. This is both as a result of the words of the legislation as well as their implementation in practice. This article proposes a suite of changes, both legislative and cultural, to bring Victoria's adoption framework in line with art 23, which it hopes will serve as a catalyst for change in other CRPD signatory states.]]>
Laws doi: 10.3390/laws6030014
Authors: Taylor S. Parker
There are many risks that students face while abroad; from tragic accidents, illness, and disease to becoming victims of violent crimes. Human trafficking is an international threat facing everyone. While victims of human trafficking come from all walks of life, in particular, individuals belonging to vulnerable populations are often targeted for this method of exploitation. Cultural competency, language barriers, and ignorance as to resources are all factors which contribute to the increased vulnerability of students studying abroad. An institution providing opportunities for international study should develop an effective approach to mitigate the risk of human trafficking through programs designed to enable students to protect themselves and others effectively. This paper comments on best practices for risk management, and explores different avenues and relevant law for increased transparency in study abroad risk.]]>
Laws doi: 10.3390/laws6030013
Authors: Michael Madison
The goal of this article is to initiate the exploration of the meanings and functions of the things of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. The article focuses firstly on the example of copyright work. Relevant challenges are both technological and conceptual, because these things blend the material and the immaterial. Works are neither as clearly defined nor as clearly limited as copyright law often suggests they are. To explain and justify that proposition, the article borrows from information science literature exploring boundary objects, which are stable physical and intangible things that align distinct but overlapping communities of practice in flexible ways, via interpretive openness. The article shows that the meanings of the work in copyright law can be unified conceptually in the sense that the work operates as a boundary object across a number of different legal and cultural divides. This view of the work clarifies the distinct status of relevant communities and practices in copyright but also bridges them in copyright's construction and governance of culture. None of the boundaries represented in these boundary objects is fixed or impermeable. Their very dynamic and sometimes porous character is precisely the governance role illuminated here.]]>
Laws doi: 10.3390/laws6030012
Authors: Aryna Dzmitryieva
Constitutional courts throughout the world are highly selective in forming their agenda. Scholars who have studied the setting of agenda have not reached agreement on the role of legal clerks in this process. This article focuses on the role of the Secretariat of the Russian Constitutional Court in the case selection process. The Russian Constitutional Court receives about twenty thousand petitions annually. Nevertheless, only dozens of them are decided on their merits by judges. Through the description of the case movement process we show that the Secretariat does have at least moderate influence on case selection. Using data received from observation and interviews with the Court's staff and judges, we find that legal assistants' decision on whether to promote a case to judges is based on different logics of decision making. First, they are bound by legal requirements. However, bureaucratic logic and the logic of appropriateness can also influence the amount of incentives to promote cases to judges.]]>
Laws doi: 10.3390/laws6030011
Authors: Matthew Rimmer
The Trans-Pacific Partnership (TPP) is a trade agreement, which seeks to regulate copyright law, intermediary liability, and technological protection measures. The United States Government under President Barack Obama sought to export key features of the Digital Millennium Copyright Act 1998 (US) (DMCA). Drawing upon the work of Joseph Stiglitz, this paper expresses concerns that the TPP would entrench DMCA measures into the laws of a dozen Pacific Rim countries. This study examines four key jurisdictions—the United States, Canada, Australia, and New Zealand—participating in the TPP. This paper has three main parts. Part 2 focuses upon the takedown-and-notice scheme, safe harbours, and intermediary liability under the TPP. Elements of the safe harbours regime in the DMCA have been embedded into the international agreement. Part 3 examines technological protection measures—especially in light of a constitutional challenge to the DMCA. Part 4 looks briefly at electronic rights management. This paper concludes that the model of the DMCA is unsuitable for a template for copyright protection in the Pacific Rim in international trade agreements. It contends that our future copyright laws need to be responsive to new technological developments in the digital age—such as Big Data, cloud computing, search engines, and social media. There is also a need to resolve the complex interactions between intellectual property, electronic commerce, and investor-state dispute settlement in trade agreements.]]>
Laws doi: 10.3390/laws6030010
Authors: Mark Weber
Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of the article through the deliberations that led up to the final version of the CRPD, which has now been ratified by 173 nations. It analyzes the text of the article and discusses its limited administrative and judicial applications. Finally, it describes the article's place in current thinking about disability human rights.]]>
Laws doi: 10.3390/laws6030009
Authors: Adam Conti
Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are governed at the international, domestic and individual levels in the future. However, the law cannot easily keep up with the rate of scientific progression. This paper aims to posit a methodology of reform, based on a core value of human dignity, as the optimal course of action to ensure that the interests of persons with disabilities, other possibly marginalised groups, and the scientific community, are balanced fairly. The paper critically analyses the current law and varying bioethical perspectives to ultimately conclude that a clear principled approach toward open discussion and consensus is of paramount importance to have any chance of devising an effective regulatory regime over human gene editing technology.]]>
Laws doi: 10.3390/laws6030008
Authors: Laura Elliott
This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a sterilising procedure. It is by no means an exhaustive coverage, but aims to critically analyse the current system and make recommendations for reform of Australian law and policy. This paper ultimately concludes that the practice of forced sterilisation in Australia should be criminalised, save for exceptional circumstances.]]>
Laws doi: 10.3390/laws6020007
Authors: Neil Hibbert
This paper addresses the question of the normative domains of human rights and social justice. Today, the dominant view in political philosophy is that they occupy largely distinct spheres, with social justice being a set of stronger egalitarian norms and human rights functioning as baseline protections against common threats posed by states to the general interests of persons subjected to them. Reflecting on current human rights practice and discourse, this paper develops a reconstructed normative model of social justice and human rights as nested membership norms in political societies. By connecting membership to processes of political legitimacy, human rights are conceptualized as increasingly functioning as the language of contesting and reforming barriers of exclusion to that status. This leads to an understanding of the possible content of human rights that is dynamic and relational, bringing it closer in line with the egalitarianism of social justice.]]>
Laws doi: 10.3390/laws6020006
Authors: Veneeta Jaswal
United States Supreme Court doctrine has, for a quarter century, permitted regulations designed—through facts or nudges, but not force—to persuade pregnant women to choose childbirth over abortion. States have increasingly exceeded the bounds of this persuasive power by subjecting women to emotive and potentially distressing 'information' like real-time fetal images, heart beat recordings, or state-mandated directives by their doctors that abortion would "terminate the life of a whole, separate, unique, living human being." This article advances a novel approach to informed consent in abortion that draws on established principles in the U.S. Federal Rules of Evidence (FRE). Evidentiary rules requiring "completeness", exempting "common knowledge", and prohibiting evidence that is "more prejudicial than probative" provide a sounder way for courts to determine which informed consent regulations on abortion mislead and demean a woman in ways that violate her constitutional right to make the ultimate decision about whether to continue a pregnancy. This evidence law framework would resolve conflicts between a woman's right and the state's interest by forbidding mandatory disclosures of incomplete, unnecessary, and emotionally charged information designed to promote childbirth over abortion.]]>
Laws doi: 10.3390/laws6010005
Authors: Frank Fowlie
This article examines the potential of using an Ombudsman to resolve sports related disputes, and further researches underway in Canada to incorporate an Ombudsman scheme. The article looks at the various types of Ombudsmen, the existing Ombudsman or Ombudsman-like dispute resolution schemes concerning sport, and provides guidance on the establishment of a nation-wide scheme for Canada. The article finds that the addition of a sports Ombudsman to ADR services already provided by the Sport Dispute Resolution Centre of Canada would be of benefit to athletes and the sports community.]]>
Laws doi: 10.3390/laws6010004
Authors: Rania Maktabi
The civic status of female citizens in the Middle East and North Africa (MENA) region is conceptualized as "enfranchised minorhood" which reflects the confined position of adult women as legal minors under the trusteeship of male kin in family law, criminal law, and nationality law. During and in the aftermath of the Uprisings that erupted throughout MENA in 2011, female lawyers in Morocco, Lebanon, and Kuwait allied with women's groups and pressured for reforms in patriarchal state laws. By 2015, reforms were manifest in criminal law; incremental in family law; and absent in nationality law. Theoretical conclusions based on comparative analysis of societal pressures in three states indicate that long historical trajectories are imperative for substantiating the expansion of female citizenship following the 2011 Uprisings. Additionally, the civic status of women in the MENA region is being strengthened under authoritarian monarchical rule in Kuwait and Morocco. A third finding is that pressures for reform have more visible reverberations in legal spheres with a clerical imprint such as family law and criminal law, while strengthened pressures in a secular legal sphere such as nationality law have been opposed more forcefully five years after the Uprisings.]]>
Laws doi: 10.3390/laws6010003
Authors: Emily Laidlaw
This paper advances privacy theory through examination of online shaming, focusing in particular on persecution by internet mobs. While shaming is nothing new, the technology used for modern shaming is new and evolving, making it a revealing lens through which to analyze points of analytical friction within and between traditional conceptions of privacy. To that end, this paper first explores the narrative and structure of online shaming, identifying broad categories of shaming of vigilantism, bullying, bigotry and gossiping, which are then used throughout the paper to evaluate different angles to the privacy problems raised. Second, this paper examines shaming through three dominant debates concerning privacy—privacy's link with dignity, the right to privacy in public places and the social dimension of privacy. Certain themes emerged from this analysis. A common feature of online shaming is public humiliation. A challenge is to differentiate between a humbling (rightly knocking someone down a peg for a social transgression) and a humiliation that is an affront to dignity (wrongly knocking someone down a peg). In addition, the privacy concern of shamed individuals is not necessarily about intrusion on seclusion or revelation of embarrassing information, but rather about the disruption in their ability to continue to participate in online spaces free from attack. The privacy interest therefore becomes more about enabling participation in social spaces, enabling connections and relationships to form, and about enabling identity-making. Public humiliation through shaming can disrupt all of these inviting closer scrutiny concerning how law can be used as an enabling rather than secluding tool.]]>
Laws doi: 10.3390/laws6010002
Authors: Stefan Sjöström Maritha Jacobsson Anna Hollander
Independent experts serve a vital role in how the human rights of patients are protected in mental health law. This article investigates the contribution of court-appointed psychiatrists (APs) in civil commitment court hearings. Analysis is based on 12 court hearings that were audiotaped. Supplementary informal interviews with participants were also conducted. Data were analysed through a combination of rhetoric analysis and discourse analysis. Analysis of the hearings reveals that APs do not fulfil their function to critically investigate treating psychiatrists' (CPs) recommendations that patients meet commitment criteria. They typically do not ask any questions from CPs, and the few questions that are asked do not cast light on the legal issues at stake. To further understand the role of APs, their communication has been analyzed in terms of four interpretative repertoires: collegial, disclosing, therapeutic and mediating. In conclusion, the human rights of patients subjected to involuntary commitment might be at risk when therapeutic concerns are built into the process. The specific Swedish model where APs deliver their own assessment about whether commitment criteria are met may be counterproductive. This argument possibly extends to the role of medical members in mental health tribunals in the United Kingdom, Australia and New Zealand.]]>
Laws doi: 10.3390/laws6010001
Authors: Laws Editorial Office
The editors of Laws would like to express their sincere gratitude to the following reviewers for assessing manuscripts in 2016.[...]]]>
Laws doi: 10.3390/laws5040043
Authors: Lisa Forman Ifrah Abdillahi Jeannie Samuel
Access to medicines is the lynchpin to realizing a range of human rights, public health and development imperatives. However, without strong policy action to increase access to affordable medicines, there is little hope of achieving the Sustainable Development Goals or of realizing the human right to health. Access to medicines is a fundamental element of the right to health, and the majority of states are bound by core obligations in this regard. Accordingly, states must ensure that this critical human rights, public health and development interest is appropriately prioritized against inadequate resource allocations and competing private or trade interests. This is an imperative which we have argued should have framed the deliberations of the UN High Level Panel on Access to Medicines, convened to propose solutions to the "policy incoherence" between international human rights, trade rules and public health that is impeding access to medicines and the right to health for millions. In this article we explore interpretations in international human rights law regarding state duties towards medicines that should have guided these deliberations, and which were presented by the first author in a submission to the panel. We argue that at least two clear right to health duties support the High Level Panel's recommendations: (1) the duty to prevent unreasonably high costs for medicines from denying large segments of the population their rights to health; and (2) the core obligation to provide essential medicines. Consequently, we explore three areas of action implied by these duties: (1) consistent implementation of human rights impact assessment; (2) institutionalizing the Agreement on Trade-Related Intellectual Property Rights (TRIPS) flexibilities in law and policy; (3) making permanent the waiver of TRIPS for least developed countries (LDC), and waiving the application of TRIPS to essential medicines in low and middle-income countries. Finally, we assess the extent to which the recommendations made by the Panel's final report comply with these duties and accordingly with the right to health.]]>
Laws doi: 10.3390/laws5040042
Authors: Rupert Harwood
The literature indicates that disabled workers in the UK experience more social injustice than UK workers as a whole, including in relation to employment rates and wage levels. Drawing on the author's 2015 qualitative study of 265 disabled workers, this paper considers how successful the Equality Act 2010 Reasonable Adjustments Duty has been in tackling this social injustice. It finds that in the context of the "flexible" labour force (consisting of insecure jobs), and the "reformed" welfare state, the Reasonable Adjustments Duty is ill-equipped to achieve its original purpose of reducing the substantial disadvantage that disabled workers face. As regards the "flexible" labour force, there appeared, for example, to be a strong reluctance to make reasonable adjustments for workers on zero hours contracts; while, as regards the impact of welfare reform, fear of being dismissed and facing benefit sanctions discouraged zero hours workers from pushing for adjustments which had been refused. The paper goes on to suggest a possible wording for a strengthened Reasonable Adjustments Duty. It concludes, however, that, without changes to unfair dismissal, and other labour laws, to address the wider iniquities of the flexible labour market, a strengthened duty will not be able to prevent a long term increase in social injustice for disabled workers.]]>
Laws doi: 10.3390/laws5040041
Authors: Christopher Goodey
A certain political rhetoric is implicit and sometimes explicit in the advocacy of human genetic modification (indicating here both the enhancement and the prevention of disability). The main claim is that it belongs to a liberal tradition. From a perspective supplied by the history and philosophy of science rather than by ethics, the content of that claim is examined to see if such a self-description is justified. The techniques are analyzed by which apparently liberal arguments get to be presented as "reasonable" in a juridical sense that draws on theories of law and rhetoric.]]>
Laws doi: 10.3390/laws5040040
Authors: Dan Burk
Communities that interact on-line through computer games and other virtual worlds are mediated by the audiovisual content of the game interface. Much of this content is subject to copyright law, which confers on the copyright owner the legal right to prevent certain unauthorized uses of the content. Such exclusive rights impose a limiting factor on the development of communities that are situated around the interface content, as the rights, privileges, and exceptions associated with copyright generally tend to disregard the cultural significance of copyrighted content. This limiting effect of copyright is well illustrated by examination of the copying of content by virtual diaspora communities such as that formed around the game Uru: Ages of Myst; thus, the opportunity for on-line communities to legally access the graphical elements on which those communities are built is fraught with potential legal liability. This presents the reciprocal situation from efforts to protect the cultural properties of indigenous communities as traditional knowledge. Reconsideration of current copyright law would be required in order to accommodate the cohesion of on-line communities and related cultural uses of copyrighted content.]]>
Laws doi: 10.3390/laws5040039
Authors: Mary Mossman
This paper initially examines the historical precedents established by some of the first women who entered the "gentleman's profession" of law in different jurisdictions, as well as the biographical patterns that shaped some women's ambitions to enter the legal professions. The paper then uses feminist methods and theories to interpret "puzzles that remain unsolved" about early women lawyers, focusing especially on two issues. One puzzle is the repeated claims on the part of many of these early women lawyers that they were "lawyers", and not "women lawyers", even as they experienced exclusionary practices and discrimination on the part of male lawyers and judges—a puzzle that suggests how professional culture required women lawyers to conform to existing patterns in order to succeed. A second puzzle relates to the public voices of early women lawyers, which tended to suppress disappointments, difficulties and discriminatory practices. In this context, feminist theories suggest a need to be attentive to the "silences" in women's stories, including the stories of the lives of early women lawyers. Moreover, these insights may have continuing relevance for contemporary women lawyers because it is at least arguable that, while there have been changes in women's experiences, there has been very little transformation in their work status in relation to men.]]>
Laws doi: 10.3390/laws5040038
Authors: Andrea Broderick
In light of the recent adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD), there is a necessity for harmonisation among the treaty bodies, particularly in the area of socio-economic rights. The equality norm in the CRPD, including the duty to reasonably accommodate, is an important facilitator of socio-economic rights. This article sets forth the opportunities for cross-fertilisation of socio-economic rights, and disability rights in particular, at the level of international human rights law and beyond, as well as the potential that exists for social change at the domestic level. The CRPD Committee and the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) will undertake the task of assessing measures adopted by States related to alleged violations under the optional protocols and will determine compliance with treaty obligations under the State reporting procedure. In that regard, a framework of "reasonableness review" is proposed, which could provide the opportunity to merge individual rights' violations with broader issues of socio-economic inequalities and could also lead to coherent implementation of the normative content of socio-economic rights at the domestic level.]]>
Laws doi: 10.3390/laws5030037
Authors: Gregor Wolbring Lucy Diep
Genetic researchers are advancing in their abilities to extract precise genetic information from biological and human entities bringing genetic research steps closer to accurately modifying genes of biological entities, including that of humans. In this analytical essay, we focus on the discussions about precision genetic intervention that have taken place since March 2015 as they pertain to disabled people. We focus on two areas; one being the role of disabled people in the recent gene editing discussions and the second being the utility of existing legal instruments. Within our first focus we address the following questions: (a) What is the visibility of disabled people in the gene-editing discussions that have taken place since March 2015? (b) What has been the impact of those discussions on disabled people? (c) Were social problems which disabled people face taken into account in those discussions; (d) How does the reality of engagement with disabled people in these discussions fit with science, technology and innovation governance discourses that ask for more stakeholder, bottom up and anticipatory involvement? Within our second focus we address the following questions: (a) What is the utility of the United Nations Convention on the Right of Persons with Disabilities (UNCRPD); and (b) What is the utility of existing legal instruments covering genetic interventions: for preventing negative social consequences of genetic engineering developments for disabled people. We argue that (a) the genetic engineering debates since March 2015 have portrayed disabled people dominantly through a medical lens; (b) that the governance of science, technology and innovation of genetic engineering including anticipatory governance and responsible innovation discourses has not yet engaged with the social impact of gene editing on disabled people; (c) that few scholars that focus on the social situation of disabled people are visible in the governance discussions of gene editing; and (d) that the utility of the UNCRPD and the investigated genetic-related legal instruments and international agreements to protect disabled people from negative consequences coming out of the gene editing discussions is unclear at the least.]]>
Laws doi: 10.3390/laws5030036
Authors: Aisling de Paor Peter Blanck
Scientific and technological developments are propelling genetics and genetic technologies into the public sphere. Scientific and technological innovation is becoming more refined, resulting in an increase in the availability and use of genetic testing, and other cutting edge genetic technologies, including gene editing. These genetic advances not only signal a growing trend towards precision medicine, but also provoke consideration of the protection of genetic information as an emerging human rights concern. Particular ethical and legal issues arise from a disability perspective, including the potential for discrimination and privacy violations. In consideration of the intersection of genetics and disability, this article highlights the significant concerns raised as genetic science and technology advances, and the consequences for disability rights, particularly the core concepts of non-discrimination, and respect for diversity and difference. On examining international human rights perspectives, it looks particularly at the UN Convention on the Rights of Persons with Disabilities and how it may be used to guide best practice in this area. With an acknowledgement of historical abuses of genetic science, this article highlights the need to maintain caution as to the potential consequences of advancing genetic technologies on persons with disabilities and indeed on society as a whole.]]>
Laws doi: 10.3390/laws5030035
Authors: Theresia Degener
The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality.]]>
Laws doi: 10.3390/laws5030034
Authors: Sylvie Fogiel-Bijaoui
This study questions the "clash of civilizations" thesis. Referring to the cosmopolitanization process as defined by Beck and Sznaider (2010), I analyze the cosmopolitanization of feminism, that is, the gradual recognition of "the others' others", the women, through the evolution of their political rights—the right to elect and be elected—at a global level. In this context, the descriptive representation of women, their substantive representation, and their voices within civil society in the North and the South highlight the fact that feminism is undergoing a process of cosmopolitanization, albeit in a slow and sporadic way. I present this argument from a postcolonial feminist perspective and base my research on NGOs' data and on data provided by the Inter-Parliamentary Union and UN-Women. First, I analyze the cosmpolitanization process as applied to feminism. Then, following Beck and Sznaider (2010), I describe how this process is articulated 'from above' (top-down cosmopolitanization), referring to electoral data from around the world and to international law. Further, I relate to the cosmopolitanization of feminism 'from below', referring to feminist theories, cyberfeminism and the global civil/feminist society. In conclusion, I discuss the common future of feminism and cosmopolitanism.]]>
Laws doi: 10.3390/laws5030033
Authors: Patricia Sanchez Abril Eugenio Pizarro Moreno
On 13 May 2014, the European Court of Justice ruled that search engines such as Google had a duty to respect EU citizens' right to be forgotten. That is, the search engines—deemed "controllers" of information under the Directive—were obligated in some circumstances to remove or de-list links from search results that pertain to information that infringes on an individual's rights under the Directive. In the fall of 2015, the Spanish Supreme Court found itself obligated to determine the application of the digital right to be forgotten in a different context: This time in a digital newspaper archive. However, since the right to be forgotten is purely judicially-created and not yet memorialized in a regulation (other than through judicial interpretations of the European Directive 1995/46/EC of the European Parliament and Council of 24 October on the protection of individuals with regard to the processing of personal data and on the free movement of such data), it is therefore appropriate to analyze Spain's recent Supreme Court ruling as an indicator of the future of the right. What does this decision mean for the future of the right to be forgotten?]]>
Laws doi: 10.3390/laws5030032
Authors: Dalit Yassour-Borochowitz
The aim of the present study is to describe and re-consider the findings obtained from analysis of 260 protection orders that were granted in cases of violence by men against their partners. The Prevention of Domestic Violence Law was enacted in Israel in 1991. The data collection for the study took place 10 years later, after the 1996 amendment was enacted. In this article I revisit the data, the only empirical data on protection orders in Israel, and examine both the process of obtaining protection orders and several attendant issues that are relevant to the procedure, such as the remedies the law offers and the use (or lack of it) judges make of them. The study compares the first ex parte hearings and the second hearings, and the discussion and summary sections provide an insight into the problems emerging from the description of the situation in Israel in light of the current knowledge existing in the world today.]]>
Laws doi: 10.3390/laws5030031
Authors: Cecilia Menjívar Shannon Walsh
High levels of violence against women and impunity in Guatemala have reached crisis proportions and have received increased international attention in recent years. The phenomenon of feminicide (e.g., killings of women in the context of state impunity), is widespread in Latin America and particularly acute in Guatemala. Many (if not the majority) are rooted in violence that becomes concentrated in the family. In this paper, we propose that both the structure and application of the laws in Guatemala contribute to widespread impunity. Police and judges use laws other than those created to address violence against women in order to justify lack of enforcement. For example, judges resist issuing restraining orders, and police refuse to apply them because this can violate perpetrators' property rights. Judges also refuse to apply domestic violence laws because this violates the principle of equality under the law. Women refuse to use the legal system to seek justice because alimony laws will not be enforced and women are economically dependent. The discriminatory fashion in which these laws are applied leads to widespread impunity. Even though laws on the books could be applied otherwise, those who implement them privilege laws that conflict with violence against women laws. While much scholarship focuses on individual-level motives for violence, we instead analyze the socio-legal environment and existing legal codes that enable continued failure to respond adequately to violence against women. The legal framework and the legal code itself are deeply shaped by the context in which they are written—the structural, gender, symbolic, everyday and long arm of political violence that permeate all aspects of life in Guatemala and exacerbate women's vulnerability, especially the poor. We argue that this broader legal context endangers the lives of women in Guatemala. We also extend the socio-legal scholarship to highlight failures for victim's families and the disempowerment of women as they enter relationships.]]>
Laws doi: 10.3390/laws5030030
Authors: Robert Koulish
Immigration mandatory detention is a particularly harsh example of the structural violence embedded in immigration enforcement. It deprives liberty without bond for immigrants with prior crimes, and assigns many individuals to the harsh conditions associated with unnecessary and even wrongful detention. Mandatory detention has been justified on the grounds that mandatory detainees are a danger to public safety. This article puts to the test this presumption of dangerousness among mandatory detainees, and finds, to the contrary, that immigrants with prior charges or convictions are no more dangerous than any other category of individuals in Immigration and Customs Enforcement (ICE) custody. Using the risk classification assessment (RCA) tool, which the author is the first to obtain through the Freedom of Information Act, the article contributes to the growing criticism of mandatory detention, providing evidence that many of those in mandatory detention should probably have never been detained.]]>
Laws doi: 10.3390/laws5030029
Authors: Marie Fallon-Kund Jerome Bickenbach
Despite the standards set out by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), states are reluctant to put an end to substitute decision-making regimes all at once. Persons with mental health problems are particularly affected by such regimes that are instituted by independent authorities through legal capacity proceedings. In order to allow the person to express their will and preferences throughout the proceedings, the right to be heard is of primary importance for the person concerned. The objective of this paper is to review the essential support mechanisms as well as procedural accommodations for the implementation of an equal and effective right to be heard for persons with mental health problems. Fulfilling the right to be heard in legal capacity proceedings is a step towards more individualized regimes that promote the autonomy of the person.]]>
Laws doi: 10.3390/laws5030028
Authors: Rolf Weber
In the course of the Internet's growing importance within the last decade, the Internet of Things (IoT) has also been a subject of much debate. Being defined by the International Telecommunication Union (ITU) as the development of item identifications, sensor technologies and the ability to interact with the environment, the term Internet of Things, in more simple words, stands for a technology that is based on the connection of everyday objects to the Internet which exchange, aggregate and process information regarding their physical environment for providing value-added services to end-users. Notwithstanding the extensive research activities having been conducted in the recent past and the broad consensus as to the necessity of a basic normative framework for IoT applications, a final multilateral agreement is still missing. In this respect, an analysis of possible approaches solving the present challenges seems to be worthwhile to conduct.]]>
Laws doi: 10.3390/laws5020027
Authors: Klaus Schmidt Alejandro Laje
Privacy laws and the use of information technology that guarantee confidentiality and information integrity are components of an individual's rights in German jurisprudence. The protection of a person's identity, information, ideas, feelings, emotions and particularly the way to communicate them is considered essential to human dignity. Extensive studies in these areas has made this protection a central pillar of law-related research in Germany.]]>
Laws doi: 10.3390/laws5020026
Authors: Andrew Martel
The Australian state has ratified the Convention on the Rights of Persons with Disabilities (CRPD), which emphasizes a social justice-based, personalized service delivery model. The upcoming National Disability Insurance Scheme (NDIS) reflects this model and aims to facilitate people living with a disability being able to access services while housed within the private residential market, a move away from a state-based combined residential/service care model. However, in Australia's neo-liberal housing market government intervention tends to shy away from policies that overtly impose restrictions on private firms. Therefore, in the absence of a subsidy from the state, the CRPD is of limited use in encouraging private developers to improve the appropriateness of its new built stock for people with a disability. A more persuasive approach is to highlight the size, diversity, and economic power of the disability-friendly housing consumer market when housing provision is separated from disability care delivery. This paper examines the feasibility of sustaining innovation in the volume builder housing market by aligning accessibility promoting changes to the existing innovation channels within Australian firms, suggesting that the NDIS concentrate on assisting the housing industry transition to a make-to-order model from the current make-to-forecast one.]]>
Laws doi: 10.3390/laws5020025
Authors: Susan Nagelsen Charles Huckelbury
Proponents of capital punishment in the United States frequently cite the evolution from electrocution and hanging to lethal injection as an indication that the evolving standards of decency exhibited by such a transition demonstrate a respect for human dignity. This essay examines that claim by evaluating two standards for assessing whether an act comports with accepted definitions of human dignity: a personal-achievement model, based on work by economist Amartya Sen of Harvard University, and a universal and intrinsic approach to human dignity articulated by criminologist Robert Johnson of the American University. We evaluate Sen's capabilities model through the lens of a condemned prisoner's ability to achieve self-defined goals. We then assess Johnson's claim that preserving human dignity requires an elimination of the death penalty, irrespective of any prisoner's ability to lead a restricted, albeit goal-directed, existence.]]>
Laws doi: 10.3390/laws5020024
Authors: Stefan Kirchner Vanessa Frese
The specifically changing climate conditions in the arctic and subarctic tremendously affect the vegetation and the conditions of the snow. This, therefore, influences the possibilities for rangifer tarandus to feed. For many indigenous peoples across the global North, the herding of reindeer, however, is an extremely important source of income. When the increasing temperatures lead to snow melting a bit and then freezing over again, the reindeer loose access to their feed. This has led to the starvation of thousands of reindeer in Russia in 2013/2014. This paper will try to shed light on the background of the historic as well as the legal aspects of indigenous Sámi reindeer herders in the multi-state Sápmi area. While reindeer herding represents a significant livelihood for the indigenous population, the change in climate increasingly threatens the sustainability of this cornerstone of Sámi identity. This text aims to highlight existing rules of international human rights introduced to protect indigenous reindeer herders and the state's duty to refrain from actions endangering indigenous livelihoods and to take positive action aimed at their protection.]]>
Laws doi: 10.3390/laws5020023
Authors: Ciara Brennan Rannveig Traustadóttir Peter Anderberg James Rice
Article 19 of the UN Convention on the Rights of Persons with Disabilities requires states to ensure that disabled people can choose where and with whom they live with access to a range of services including personal assistance. Based on qualitative research of the implementation of Article 19 in Nordic countries, this paper focuses on Sweden, which was at the forefront of implementing personal assistance law and policy and has been the inspiration for many European countries. Instead of strengthening access to personal assistance, this study found that since the Swedish government ratified the Convention in 2008, there has been an increase in the numbers of people losing state-funded personal assistance and an increase in rejected applications. This paper examines the reasons for the deterioration of eligibility criteria for accessing personal assistance in Sweden. The findings shed light on how legal and administrative interpretations of "basic needs" are shifting from a social to a medical understanding. They also highlight a shift from collaborative policy making towards conflict, where courts have become the battleground for defining eligibility criteria. Drawing on the findings, we ask if Sweden is violating its obligations under the Convention.]]>
Laws doi: 10.3390/laws5020022
Authors: Claire Brolan
On 25 September 2015, the United Nations (UN) General Assembly unanimously voted for the post-2015 UN resolution on the post-2015 Sustainable Development Goal (SDG) agenda. This article argues that although the post-2015 SDG agenda is an advance on its precursor the Millennium Development Goals (MDGs)—especially for progressing the human rights of persons with disabilities in development settings, everywhere—it should nonetheless be approached with caution. This article will identify "three steps forward" for persons with disabilities within the broad content of the post-2015 SDGs, while also highlighting four potential "steps back". It concludes persons with disabilities, disability rights advocates and their supporters must remain vigilant as the post-SDG UN resolution is now operationalised and implemented by UN Member States and their many partners. This is particularly so if the content of the Convention on the Rights of Persons with Disabilities is to be effectively integrated into the post-2015 development policy and planning landscape.]]>
Laws doi: 10.3390/laws5020021
Authors: Stephen Meyers
The Convention on the Rights of Persons with Disabilities (CRPD) is unique among international human rights instruments for including a "civil society mandate". Within the convention, disabled persons organizations (DPOs) are identified as having the responsibility to "be involved and participate fully in the monitoring process" of the CRPD. In response to this mandate, international funders, NGOs (non-governmental organizations), and networks committed to the CPRD have begun to implement capacity-building programs that target grassroots DPOs with the goal of ensuring they become advocates and monitors of the CRPD. While the goals of these capacity-building programs are admirable, they must be critically assessed. The NGO-ization theory within development studies offers a framework for analyzing the potential unintended consequences of donors providing new funding, NGOs providing training, and global networks integrating local partners. NGO-ization studies have identified how grassroots associations are co-opted by outside actors through formalization and professionalization processes that significantly alter local groups and alienate members, thus making those associations less representative and less responsive to local needs and interests. Human rights scholars and international organizations focused on the CRPD should incorporate an NGO-ization perspective into their research and project-implementation to ensure that grassroots voices are heard and local needs addressed.]]>
Laws doi: 10.3390/laws5020020
Authors: Kathleen Morris Kamrul Hossain
In response to heightened threat to Arctic marine biodiversity due to polar ice melt, the following paper seeks to use qualitative secondary research to analyze existing anthropogenic threat to Arctic marine life and to evaluate current efforts on the part of the Arctic Council to protect biodiversity through a network of state-created marine protected areas (MPAs). We conclude that the current method for MPA creation fails to offer adequate pathways for creation of MPAs in Areas Beyond National Jurisdiction (ABNJ), the high seas which fall beyond individual countries' exclusive economic zones (EEZs). Thus, our central research question is to determine what legal basis and mechanisms exist for the creation of MPAs in ABNJs, with particular focus on the Arctic marine environment. In keeping with The United Nations Convention on Biological Diversity's (UNCBD) precautionary approach, along with specific rules embodied within The United Nations Convention on the Law of the Sea (UNCLOS), we find a basis for creation of MPAs in the ABNJ. The text evaluates findings from the Boulogne-sur-Mer international conference of 2011 to suggest that such MPA creation in ABNJ could be approached via four pathways: regional agreement, UNCLOS implementing agreement, UNCBD additional protocol, or an Arctic Sanctuary modeled on the Antarctic Treaty. While we explore all four options, we argue that, due to geopolitical constraints, a comprehensive regional agreement offers the best path to High Arctic MPA creation.]]>
Laws doi: 10.3390/laws5020019
Authors: Sayaka Hori
Groundwater is extremely important to all societies. It provides in many places a reliable and ample supply of water for home use, irrigation, and industry. Japanese groundwater policy consists of complex laws and rules. The law governing groundwater nationally is inadequate. The main controversy has been that a river law exists only at a national level, whereas groundwater law does not exist in the national law of Japan. When local government faces problems with groundwater, the policy makers have to solve the problem following their local rules. Each local government solves problems case by case. Local government is used to obeying local rules and old traditions. Local common law becomes the local groundwater rule. Groundwater policy has recently been progressively promoted to an evolution of the local groundwater ordinances for sustainable groundwater conservation. This paper describes the complex legal framework of the related local groundwater policy and regulations under Japanese law. This is a bibliographic survey of Japanese groundwater laws and local groundwater ordinances. It is used to analyze the functions of local autonomy and the role of ordinances and to explain its changing functionalities of groundwater ordinances. Local ordinances are known as the strongest conservation legal network for sustainable groundwater policy in Japan. This is the first paper to try to explain the basic principles of the Japanese groundwater law for an international journal.]]>
Laws doi: 10.3390/laws5020018
Authors: Seong Hong
The lives of celebrities are often spotlighted in the media because of their newsworthiness; however, many celebrities argue that their right to privacy is often infringed upon. Concerns about celebrity privacy are not limited to the celebrities themselves and often expand to their children. As a result of their popularity, public interest has pushed paparazzi and journalists to pursue trivial and private details about the lives of both celebrities and their children. This paper investigates conflicting areas where the right to privacy and the right to know collide when dealing with the children of celebrities. In general, the courts have been unsympathetic to celebrity privacy claims, noting their newsworthiness and self-promoted characteristic. Unless the press violates news-gathering ethics or torts, the courts will often rule in favor of the media. However, the story becomes quite different when related to an infringement on the privacy of celebrities' children. This paper argues that all children have a right to protect their privacy regardless of their parents' social status. Children of celebrities should not be exempt to principles of privacy just because their parents are a celebrity. Furthermore, they should not be exposed by the media without the voluntary consent of their legal patrons. That is, the right of the media to publish and the newsworthiness of children of celebrities must be restrictedly acknowledged.]]>
Laws doi: 10.3390/laws5020017
Authors: Rupert Harwood
The research literature indicates that legislative changes in recent years, including the introduction of tribunal fees, have made it harder for workers in general to enforce their rights under UK employment laws. Drawing on the author's qualitative study, conducted in 2015 and with information from 265 participants, this paper finds that these legislative changes could be having disproportionate adverse impacts on disabled workers. Of particular note, fees had deterred substantial numbers from submitting discrimination claims; and it appeared that this reluctance to take legal action had in turn emboldened some employers to commit what might have been found to constitute unlawful acts if taken to tribunal. The paper goes onto consider whether these adverse impacts on disabled workers could render fees unlawful under UK and European equality and human rights law and/or could entail violations of rights under the United Nations Convention on the Rights of Persons with Disabilities. The paper concludes that the intent behind UK laws might (in relation to the lawfulness of fees) have been frustrated in the domestic courts and that the impact of any future successes in the domestic courts, or under international law, might be dependent upon public opinion and political expediency. The paper also briefly compares developments in Britain with developments in neighbouring and other comparable jurisdictions.]]>
Laws doi: 10.3390/laws5020016
Authors: Maria Guia João Pedroso
The Portuguese social sciences literature has recently begun to make references to so-called "sensitive urban zones" (SUZs), described as vulnerable zones on the outskirts of big cities (e.g., Lisbon and Setúbal) where the population suffers from poor socioeconomic conditions. The same literature has also described these zones as being areas where migrants, especially people from Portuguese-speaking African countries (PALOP), and the unemployed tend to congregate. Since the beginning of the century, these areas have seen the number of foreigners of certain ethnicities rising, especially after the last mass regularization of migrants. At the same time, police forces describe these zones as being primary intervention areas, leading to the targeting of SUZ residents. Moreover, certain new migrant groups to Portugal (and to these SUZs) are over-represented in Portuguese prisons, suggesting some bias on the part of the judicial system, who have historically described SUZs as areas of growing criminality and drug trafficking. As such, SUZ residents are thought to need greater social control, and more visible and selective policing. Within this framework, police have institutionalized a perception of SUZs as crime ghettos in need of targeting, these perceptions being reinforced by documentation concerning the "rise" of new forms of violent crime from abroad. Therefore, it is important to study these perceptions of crime as contributing to the characterization of SUZs as being areas of criminality, and how such perceptions are reinforced by the legislature's designation of SUZs as being areas requiring "special policing strategies". This article will focus on the balance between the selectivity of police and the justice system in Lisbon's SUZs, with an emphasis on issues pertaining to immigration and crime. Moreover, we consider wider societal perceptions of crime, where stereotypes are constructed around a vulnerable population as needing social policies.]]>
Laws doi: 10.3390/laws5010015
Authors: Martin Zinkler
Coercive treatment with antipsychotic drugs was commonly used in German psychiatric institutions until it became a topic of substantial medical, legal and ethical controversy. In 2011 and 2012, several landmark decisions by Germany's Constitutional Court and Federal Supreme Court challenged this practice in all but life-threatening emergencies. In March 2013, the new legal provisions governing coercive treatment took effect allowing coercive medication under stricter criteria. While mainstream psychiatry in Germany resumed the use of coercive medication, although less frequently than before 2012, there are examples where clinicians put an even greater emphasis on consensual treatment and did not return to coercive treatment. Data from a case study in a local mental health service suggest that the use of coercive medication could be made obsolete.]]>
Laws doi: 10.3390/laws5010014
Authors: Samantha Jeffries
This paper outlines why domestic violence (or more specifically, coercive control) should be crucial to child custody proceedings. What is known about parenting in the context of coercively controlling violence, and what the legislation directs courts to consider, is juxtaposed with the actuality of court decision making. Current knowledge about the recognition of domestic violence in judicial practice is overviewed, drawing particular attention to the role of the "expert" family assessment in determinations of a child's "best interests". A comprehensive synopsis of the existing research on these "expert" reports in Australia, the United Kingdom and the United States is provided. It is concluded that, in court proceedings the reality of living with coercively controlling violence and the potential on-going risks it poses to children and non-abusive parents, is typically negated. Instead, "best interests" considerations prioritise the maintenance of perpetrator/child relationships, and thus "abuser's rights" over victim safety. Judicial officers are not experts in domestic violence and they can only make decisions on the basis of the evidence before them, the assessments made by the "experts" likely play an important role in best interest considerations. Of concern is current research that calls into serious question the expertise of these "experts" when it comes to proceedings involving allegations of coercively controlling violence.]]>
Laws doi: 10.3390/laws5010013
Authors: Penelope Weller
This article provides an applied analysis of Article 12 (Equal recognition before the law) of the Convention on the Rights of Persons with Disabilities (CRPD) and Article 13 (Access to justice) in the context of Article 6 (Women with disabilities). Recent literature on the CRPD has extended the analysis of Article 12 to consider its broader relevance for the interpretation of Article 13. The interaction between Article 12 and Article 13 is an emerging issue in CRPD debates. This article argues that the CRPD must be interpreted in light of current human rights theory. It provides a case study of the interaction between Article 12 and Article 13 based on the facts recited in the Court of Appeal case in the United Kingdom (RP v Nottingham City Council (2008)) and RP's petition to the European Court of Human Rights (RP and Others v United Kingdom (2012)). The analysis shows that CRPD principles could and should have been applied in RP's case. It concludes that current practices excluding people with disabilities from participation in legal proceedings are contrary to the CRPD.]]>
Laws doi: 10.3390/laws5010012
Authors: Jean Bérard
This article describes (1) the relationship between the demands made by feminist movements of the 1970s in cases of sexual violence and criticism of the criminal justice system by these movements and other groups, including the prisoners' movement; and (2) the relationship between this debate and the legal process of reforming the definition and punishment of rape. Two periods are analyzed. In the early 1970s, the common cause of very different movements targeting the law was the priority given to the defense against forms of repression and disciplinary institutions. After 1975, the demands of feminist and prisoner movements diverged and even conflicted. One camp called for an offensive approach to changing the legal punishment of rape whereas the other camp fought against penal reforms imposed by the government and, more specifically, against long sentences.]]>
Laws doi: 10.3390/laws5010011
Authors: Jessica White Patricia Easteal
In this paper we briefly focus on intimate partner sexual violence (IPSV) and the Australian legal response, using recent Court judgements and Heather Wishik's feminist jurisprudence framework for inquiry to guide investigation. The key questions being asked are: (1) What have been and what are now all women's experiences of IPSV addressed by the substance and process of rape law? (2) What assumptions, descriptions, assertions and/or definitions of consent, corroboration and reporting does the law make in IPSV matters? (3) What is the area of mismatch, distortion or denial created by the differences between women's life experiences of IPSV coercion and the law's assumptions or imposed structures? (4) What patriarchal interests are served by the mismatch? The paper concludes with consideration of the limitations and benefits of law reform by reflecting on the findings of the paper.]]>
Laws doi: 10.3390/laws5010010
Authors: Lisette Ten Haaf
Increasingly, the law has been paying attention to the future child and the prevention of preconceptual harms. Regulation on procreation often appeals to the future child's interests in order to justify the prevention of the child's existence. However, besides bioethical critique, there is also a legal-theoretical problem that has been neglected so far. This article argues that the future child whose existence is prevented by an appeal to its own interests does not fit in the "regular" concept of law's subject: the legal person. This creates two representation problems: First, the law lacks the proper vocabulary to address and represent this non-existent entity. Second, the appeal to its own interests as a justification of the prevention of the child's existence creates a paradox, as the future child is treated as a subject and a non-subject at the same time. These two representation problems complicate the way law can "deal with" this singular entity. Since the vocabulary of the legal person is not equipped to articulate the future child, this article argues that further research is needed to understand what the future child is and how it functions in law.]]>
Laws doi: 10.3390/laws5010009
Authors: Veronika Flegar María Dalli Brigit Toebes
The present study analyzes the preventive health care provisions for nationals and undocumented migrants in Germany, the Netherlands and Spain in light of four indicators derived from the United Nations Committee on Economic, Social and Cultural Rights' General Comment 14 (GC 14). These indicators are (i) immunization; (ii) education and information; (iii) regular screening programs; and (iv) the promotion of the underlying determinants of health. It aims to answer the question of what preventive health care services for undocumented migrants are provided for in Germany, the Netherlands and Spain and how this should be evaluated from a human rights perspective. The study reveals that the access to preventive health care for undocumented migrants is largely insufficient in all three countries but most extensive in the Netherlands and least extensive in Germany. The paper concludes that a human rights-based approach to health law and policy can help to refine and concretize the individual rights and state obligations for the preventive health care of undocumented migrants. While the human rights framework is still insufficiently clear in some respects, the research concedes the added value of a rights-based approach as an evaluation tool, advocacy framework and moral principle to keep in mind when adopting or evaluating state policies in the health sector.]]>
Laws doi: 10.3390/laws5010008
Authors: George Asllani
Marriage fraud is considered a true immigration crime in that not only does it carry penalties related to an immigrant's status, but also severe penal consequences under federal law. This paper seeks to explore how a case of marriage fraud is discovered, investigated and prosecuted by immigration officials, and, ultimately, by the judicial system. The paper focuses on recent immigration law developments and lays out a blueprint of a marriage fraud case under the 1986 Marriage Fraud Amendments to the Immigration and Naturalization Act.]]>
Laws doi: 10.3390/laws5010007
Authors: Antonia Zervaki
This paper discusses the contribution of marine sites of outstanding universal value, enlisted as natural and mixed sites in the World Heritage List, to the sustainability of marine resources and protection schemes. Departing from the strict application of the Convention's criteria, the management requirements and good practices will be discussed, with emphasis on the dissemination of the latter in other (non)protected areas as well as its contribution, in terms of the integrity principle to be met, to the expansion of this approach in areas beyond national jurisdiction through the development of synergies with existing and emerging marine environment protection regimes.]]>
Laws doi: 10.3390/laws5010006
Authors: Joanne Watson
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was the first legally binding instrument explicitly focused on how human rights apply to people with disability. Amongst their obligations, consistent with the social model of disability, the Convention requires signatory nations to recognise that "…persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life" and mandates signatory nations to develop "…appropriate measures to provide access by persons with disability to the support they may require in exercising their legal capacity". The Convention promotes supported decision-making as one such measure. Although Australia ratified the UNCRPD in 2008, it retains an interpretative declaration in relation to Article 12 (2, 3, 4), allowing for the use of substituted decision-making in situations where a person is assessed as having no or limited decision-making capacity. Such an outcome is common for people with severe or profound intellectual disability because the assessments they are subjected to are focused on their cognition and generally fail to take into account the interdependent nature of human decision-making. This paper argues that Australia's interpretative declaration is not in the spirit of the Convention nor the social model of disability on which it is based. It starts from the premise that the intention of Article 12 is to be inclusive of all signatory nations' citizens, including those with severe or profound cognitive disability. From this premise, arises a practical need to understand how supported decision-making can be used with this group. Drawing from evidence from an empirical study with five people with severe or profound intellectual disability, this paper provides a rare glimpse on what supported decision-making can look like for people with severe or profound intellectual disability. Additionally, it describes the importance of supporters having positive assumptions of decision-making capacity as a factor affecting supported decision-making. This commentary aims to give a focus for practice and policy efforts for ensuring people with severe or profound cognitive disability receive appropriate support in decision-making, a clear obligation of signatory nations of the UNCRPD. A focus on changing supporter attitudes rather than placing the onus of change on people with disability is consistent with the social model of disability, a key driver of the UNCRPD.]]>
Laws doi: 10.3390/laws5010005
Authors: Shawna Benston
Reproductive genetic technologies (RGTs), including gene-editing technology, are being discovered and refined at an exponential pace. One gene-editing innovation that demands our swift attention is CRISPR/Cas9, a system of clustered regularly interspaced short palindromic repeats and a protein called Cas9. As CRISPR and other RGTs continue being developed, we must remain vigilant concerning the potential implications of genetic-engineering technology on our interpersonal and legal relationships. In the face of increasingly numerous and refined RGTs, we must maintain the rights of everyone: potential parents, prospective children, and individuals (both living and prospective) with disabilities. For those who wish to become parents, how should procreation be regulated in light of developing RGTs, especially gene-editing technology? What duties do parents owe their children, and when does such a duty attach? What role should RGTs play in parents' fulfillment of their duties to their children? This article will contextualize the right to health and what I will term the "right to disability" in the CRISPR/Cas9 landscape. The article will then explore these rights in reference to the "subjunctive-threshold" interpretation of harm. Finally, I will argue that RGTs must be thoughtfully regulated, with such regulations taking into account the opinions of geneticists, bioethicists, and lay people concerning both the right to health and the right to disability.]]>
Laws doi: 10.3390/laws5010003
Authors: Caroline Doyle
Latin America is one of the world's most violent regions, with 40 of the 50 most violent cities, but with only 8% of the world's population, and a staggering 33% of global homicides. At the forefront of these high levels of violence are gangs that are more flexible and persistent than previously thought. This paper provides a discussion on gangs in one Latin American city, Medellin, Colombia, where different non-state groups have contributed to changing patterns of homicide rates. The paper presents preliminary findings to show how, despite the city experiencing a 90% reduction in homicide rates in less than 25 years, violent non-state groups have become embedded as part and product of their environment, acting as coherent, logical and functional players, linked to the structural inequalities and institutional fragility of the larger society.]]>
Laws doi: 10.3390/laws5010004
Authors: Allison Ballard Patricia Easteal
Australia's innovative national anti-bullying legislation came into effect on 1 January 2014, against a backdrop of fear and resistance on the part of some conservative politicians and other stakeholder opponents. This paper contributes to an understanding of the efficacy and value of this fledgling jurisdiction or its lack thereof. In it, we describe the beginnings of the anti-bullying regime, outline the new legislative provisions, explore whether the inaction of the first six months has continued, examine the statistics arising from the jurisdiction's first 15 months of operation, and review the case law development over its first 18 months. We ask whether the anti-bullying jurisdiction is proving to be a paper tiger in an empty suit or iron fist in a velvet glove.]]>
Laws doi: 10.3390/laws5010002
Authors: Laws Editorial Office
The editors of Laws would like to express their sincere gratitude to the following reviewers for assessing manuscripts in 2015. [...]]]>
Laws doi: 10.3390/laws5010001
Authors: Gherardo Carullo
The paper addresses the problem of intra-European services provided to professionals in the legal sector. Through a brief overview of the main services that are or may be offered in the internal market in this field, the author identifies the lack of interoperability as one of the most critical barriers currently preventing effective intra-community competition. The author wonders to what degree and under which rules of the treaties a European intervention could be justified and, therefore, what purposes could be pursued through European legislation. The author analyses the rail transport sector to assess if, and to what degree, existing barriers to entry could be reduced and innovation could be fostered by defining certain standards at a European level for the interoperability of IT systems in the field of law. In particular, the example of the rail sector is analyzed to determine the degree to which the solutions already in place for the "telematics applications for the passenger services subsystem" could be replicated in the context of the services addressed by the paper. In conclusion, the author suggests that addressing the issues of interoperability in the legal services sector could be a useful first step towards the digitalization of the internal market, as advocated by the Commission in its recent Communication on the digital single market.]]>
Laws doi: 10.3390/laws4040803
Authors: Elisa Morgera
As the debate about the need to clarify the content of the human right to science intensifies, this article assesses opportunities for opening a scholarly and policy dialogue on fair and equitable benefit-sharing between international human rights and biodiversity lawyers. To that end, the article contrasts the emerging conceptualizations of the right to science in the context of international cultural rights and of fair and equitable benefit-sharing under international biodiversity law. It then critically assesses the potential for cross-fertilization with specific regard to: the sharing of scientific information and promotion of scientific cooperation, the transfer of technology, and the protection and valorization of traditional knowledge of indigenous peoples and local communities. While acknowledging that both the right to science and fair and equitable benefit-sharing are far from being fully understood or operationalized, the article argues that developments in international biodiversity law concerning the latter may provide insights into how a vague and optimistic concept can (and when it cannot) lead to tangible outcomes, rather than remaining merely rhetorical.]]>
Laws doi: 10.3390/laws4040771
Authors: Atina Krajewska
"Global health" is an increasingly important area of research and practice, concerned with the profound implications of globalisation for individual and communal health (particularly in developing countries) and focused on achieving health equity for all people worldwide. As such, it is often viewed as overlapping with public health and, thus, conceptually distinct from the field of biomedicine and bioethics. Both fields bear an uneasy relationship with the field of human rights, which remains largely unexplored. The paper constructively utilises insight derived from theories of global legal pluralism and global constitutionalism to argue, perhaps controversially, that recent developments in international biomedical law and bioethics, constitute an important phase in the constitutional construction of a global health law system. In doing so, the paper analyses the role of human rights in the growing constitutional autonomy and organization of global health.]]>
Laws doi: 10.3390/laws4040755
Authors: Dimitrios Tsarapatsanis
Human dignity is considered by a number of commentators as a normative concept that could potentially bridge the gap between bioethics and human rights. The purpose of this article is to question this assumption insofar as it applies to embryonic human life by way of a case study. The article will chart the way dignity has been historically used in French political and legal debates since the 1990s to attempt to afford constitutional protection to human embryos. It then proposes an interpretation of why such attempts failed, which could have wider significance for current debates.]]>
Laws doi: 10.3390/laws4040729
Authors: Lina Newton
Over the last decade states passed hundreds of immigration bills covering a range of policy areas. This article considers the recent state legislative surge against scholarly treatments of immigration federalism, and identifies the symbolic politics in state lawmaking. The analysis combines a historical treatment of key court decisions that delineated boundaries of state and federal immigration roles with a legislative analysis of over 2200 immigration bills passed between 2006 and 2013, to identify the numerous ways in which national immigration policy shapes state measures. It argues that recent laws must be considered against symbolic federalism which privileges state sovereignty and justifies social policy devolution by advancing frames of intergovernmental conflict, state-level policy pragmatism, and federal ineffectiveness.]]>
Laws doi: 10.3390/laws4040709
Authors: Camillia Kong
Human rights have recently impacted on current conceptualisations of the rights and obligations owed to individuals with impairments, culminating in the UN Convention for the Rights of Persons with Disabilities. Particularly significant is Article 12, where interpretations have heralded a "will and preferences" paradigm which rejects substituted decision-making mechanisms, even in situations where an individual should make personally harmful or unwise decisions about their treatment, care, or relationships. This paper explores problems with "strict" and "flexible" interpretations of Article 12, focusing specifically on safeguarding issues in cases of relational abuse, exploitation, and coercion. Drawing analogies with feminist arguments opposing violence against women in the domestic sphere, I challenge the private/public and individualistic account of autonomy which is implicit in interpretations of the "will and preferences" paradigm, and suggest that proponents of Article 12 should consider the possible justifiability of expanded protectionist measures in cases of abuse involving individuals with impairments.]]>
Laws doi: 10.3390/laws4040691
Authors: Garfield Blake
Previous empirical studies have uncovered little evidence that crime hinders development, possibly due to simultaneity problems. This paper uses the increase in criminal deportees from the US as an instrumental variable to identify the causal effect of crime on economic growth and development. An increase in the number of criminal deportees received by a country is shown to substantially increase that country's homicide rate. Using panel data for a sample of 30 Latin America and the Caribbean (LAC) countries, I show that the increase in crime is becoming a major obstacle to growth and development in the region.]]>
Laws doi: 10.3390/laws4040674
Authors: Charles Di Leva
This article discusses climate-related standards that development finance institutions establish or apply to projects supported by their investments. It focuses particularly on multilateral development banks given their major role in providing finance to developing countries, where the bulk of the world's fastest growing emissions are taking place. It looks at proposed and recently adopted standards, as well as different perspectives developed and developing countries have regarding these standards. It also discusses how these standards might be impacted by the evolution of the United Nations Framework Convention on Climate Change (UNFCCC) negotiations and concludes that there will be continuing challenges to implement these standards unless developed countries fulfill their pledge of expected finance.]]>
Laws doi: 10.3390/laws4040673
Authors: Frank Pasquale Martyn Rittman
We are pleased to announce that all manuscripts submitted to Laws after 10 October 2015 will be reviewed using a double blind peer-review process. [...]]]>
Laws doi: 10.3390/laws4040654
Authors: Donna Bowen Valerie M. Hudson Perpetua Nielsen
In this paper we examine the linkage of male-dominant family law systems and levels of nation-state security and stability. We expect such societies to be predisposed to parasitical rent-seeking and inefficiency, combined with coercive conflict resolution, resulting in higher levels of violence within the society. We demonstrate empirically that states with inequitable family law also exhibit higher levels of state fragility. Using standard indicators of state stability and security, our empirical results show that the ability to predict levels of state stability and security is significantly enhanced by examining a measure of Inequity in Family Law in addition to more conventional explanatory variables such as literacy rate, level of democracy, and civilizational influence.]]>
Laws doi: 10.3390/laws4030638
Authors: Mizan Khan
This article traces the evolution of polluter-pays-principle (PPP) as an economic, ethical and legal instrument and argues that it has the potential of effecting global responsibility for adaptation and mitigation and for generating reliable funding for the purpose. However, the contradiction is that while it rests on neoliberal market principles, the UN Framework Convention on Climate Change did not include the PPP as its provision though the principle of "common but differentiated responsibility based on respective capabilities" (Article 3.1) implicitly recognizes this. The article raises the basic question that under a free-market global system: why should the polluters not take responsibility of their actions so that the global society does not suffer? The Organization of Economic Cooperation and Development (OECD) countries apply this PPP in many of its forms. Some developing countries are also applying it albeit still more as a governmental rather than polluter responsibility. Currently there is an emerging consensus that a carbon tax should be applied globally to address the intractable problem of climate change. Since the problem relates to a global commons, the issue is how to apply the PPP globally yet equitably. This article brings in Caney's proposal that as complementary to the PPP. The "ability to pay principle" (APP) can take care of emissions of the past agreed by the Parties and current and future legitimate emissions of the disadvantaged countries and groups of people. He calls the latter poverty-sensitive PPP. While PPP is primarily a market principle, APP is a principle of justice and equity. That polluters should pay the social and environmental costs of their pollution reflects the most fundamental principles of justice and responsibility.]]>
Laws doi: 10.3390/laws4030617
Authors: Stephanie Switzer Leonardus Gerber Francesco Sindico
In the past few years, the Chinese government opted to restrict the export of selected minerals on environmental and health grounds, subsequently leading to an uproar in countries and regions that rely heavily on imports from China to develop their renewable industry sector. This paper places the focus on the law and policy of the Chinese export restrictions of critical minerals, and its implications for the global renewables energy industry. The paper critically assesses how such export restrictions have been dealt with under the dispute settlement system of the World Trade Organisation (WTO). Drawing on this WTO jurisprudence, we posit that litigation on export restrictions of the kind imposed by China poses a threat to the legitimacy of the WTO. We therefore conclude by exploring whether there are any alternatives to litigation as a means to deal with countries choosing to impose mineral export restrictions.]]>
Laws doi: 10.3390/laws4030602
Authors: Rebeca Bautista Esther Sitges Sonia Tirado
To prevent dangerous driving behaviors, the Spanish government has implemented public policies focused primarily on increasing the harshness of sanctions for violations of traffic laws. However, empirical evidence has demonstrated that other factors, such as social norms and one's own value system, have an impact on people's motivation to obey the law. A telephone survey was administered to a random sample of 570 Spanish drivers in order to determine the role played by each of these factors in compliance with two of the most flouted traffic rules. Logistic regression of the data allowed for the construction of models and arrive at the following conclusions: (1) social influence exerted by the reference group is a determining factor in compliance with both traffic laws; (2) legitimacy factors play an important role in complying with alcohol limits; and (3) variables from the deterrence approach only influenced compliance with speed limits, and then only moderately. The results of the present study suggest a need for a review of current public policy approaches for the prevention of dangerous driving behaviors.]]>
Laws doi: 10.3390/laws4030579
Authors: Meital Pinto
The Israeli Plonit case concerns a Muslim woman who wished to be represented by a female arbitrator in a Shari'a Court. The Shari'a Court of Appeals denied her request and decided that Shari'a Law permits only men to serve as arbitrators. Plonit petitioned the Israeli Supreme Court, which accepted her petition and decided that the Shari'a Court of Appeals' decision infringed her right to equality. While I support the outcome of the Supreme Court's decision, my paper sheds a light on a crucial matter that is absent in the decision; namely, the right to culture of Muslim women, who are a vulnerable members of a minority group in Israel, and therefore constitute a "minority within minority". Analysing the case in terms of Plonit's right to culture, in addition to her right to equality, has two advantages. First, it stresses the main issues at the heart of the legal debate, which are the minority culture's norms and practices, and the right of the minority within the minority to influence and shape them as much as the majority within the minority. Second, when the minority within the minority's claim is put in terms of the right to culture, and not only in terms of the right to equality, they are not necessarily perceived by other minority members as claims that try to enforce external norms on the minority culture.]]>
Laws doi: 10.3390/laws4030559
Authors: Anthony Willis Barbara Zaitzow
"Life means life" is a mantra of elected state officials who would rather spend already-compromised state budgets on increasing the use of imprisonment as a punishing tool rather than being viewed by their constituents as "soft on crime". As a result of tough-on-crime initiatives, approximately 160,000 out of 2.2 million inmates being held in jails and prisons in the United States are serving life sentences. While surviving imprisonment is a challenge for most individuals, prisoners who serve long sentences—including "life"—have different adaptation mechanisms, and for them, adaptation is a longer, more complex process. Further, while persons serving life sentences include those who present a serious threat to public safety, they also include those for whom the length of sentence is questionable. In particular, life without parole (LWOP) sentences often represent a misuse of limited correctional resources and discount the capacity for personal growth and rehabilitation that comes with the passage of time. The purpose of this article is to explore the "doing life" experiences of a man who has chosen to redirect the focus of his life by transforming himself and helping others.]]>
Laws doi: 10.3390/laws4030541
Authors: Laurence de Chazournes
This article takes a closer look at the complex web of financial assistance mechanisms in the climate change sector. These mechanisms are important tools for assisting developing countries to address the challenges associated with climate change. Mapping the various types of institutions and funds in this sector, the author underlines the important role played by the private sector but also highlights the increasing presence of financial mechanisms under the aegis of international organizations, such as the World Bank. Moreover, a particular focus is placed on the Green Climate Fund and the way in which the establishment of this mechanism may affect the functioning of existing financial mechanisms. In calling for better communication, coordination, and coherence among these actors and mechanisms, the author suggests that these ends may be achieved by placing an emphasis on plurality, complementarity, and mutual support through, inter alia, more effective policy oversight and enhanced inter-institutional relations.]]>
Laws doi: 10.3390/laws4030515
Authors: Edward Dove Vural Özdemir
The global bioeconomy is generating new paradigm-shifting practices of knowledge co-production, such as collective innovation; large-scale, data-driven global consortia science (Big Science); and consortia ethics (Big Ethics). These bioeconomic and sociotechnical practices can be forces for progressive social change, but they can also raise predicaments at the interface of law, human rights, and bioethics. In this article, we examine one such double-edged practice: the growing, multivariate exploitation of Big Data in the health sector, particularly by the private sector. Commercial exploitation of health data for knowledge-based products is a key aspect of the bioeconomy and is also a topic of concern among publics around the world. It is exacerbated in the current age of globally interconnected consortia science and consortia ethics, which is characterized by accumulating epistemic proximity, diminished academic independence, "extreme centrism", and conflicted/competing interests among innovation actors. Extreme centrism is of particular importance as a new ideology emerging from consortia science and consortia ethics; this relates to invariably taking a middle-of-the-road populist stance, even in the event of human rights breaches, so as to sustain the populist support needed for consortia building and collective innovation. What role do law, human rights, and bioethics—separate and together—have to play in addressing these predicaments and opportunities in early 21st century science and society? One answer we propose is an intertwined ethico-legal normative construct, namely trustworthiness. By considering trustworthiness as a central pillar at the intersection of law, human rights, and bioethics, we enable others to trust us, which in turns allows different actors (both nonprofit and for-profit) to operate more justly in consortia science and ethics, as well as to access and responsibly use health data for public benefit.]]>
Laws doi: 10.3390/laws4030472
Authors: Rafael Leal-Arcas Valentina Caruso Raphaela Leupuscek
A major aim of the international community is to decarbonize the economy. With renewables, international trade in energy is likely to increase. In turn, the international trading system can be a major vehicle towards moving away from fossil fuels to renewable energy. To this end, it can provide fair competition, economies of scale and knowledge transfer. This article analyzes the impact of European Union (EU) preferential trade agreements (PTAs) in addressing climate change mitigation and energy security by promoting renewables. Currently, there is a proliferation of PTAs; this trend seems irreversible and is likely to persist, given the current crisis in the multilateral trading system. We argue that the EU can, through its network of PTAs, move towards greater energy independence as renewable energy becomes increasingly economically viable. This article provides a thorough review of the renewable energy-related provisions in the EU's current PTAs and recommends three tangible ways through which the EU could capitalize its vast network of PTAs to boost the renewable energy market.]]>
Laws doi: 10.3390/laws4030413
Authors: Norbert Brunner Vijay Mishra Ponnusamy Sakthivel Markus Starkl Christof Tschohl
Recent concerns about alleged insufficient water provision to the poor in Detroit, USA, has put the Human Right to Water (HRW) into the international discussion. The paper asks: "To what extent did international human rights treaties make HRW judiciable?" and "How did government policies implement it?" In a cross-country comparison of performance indicators, merely accepting HRW has not been helpful in promoting affordable access to potable water or sanitation facilities close to the home, amongst the reasons being deficiencies in water-governance. Case-law confirmed that with respect to affordable access HRW obliges governments to a "progressive realization" only, also in countries accepting HRW (India, South Africa). The paper focuses on the resulting positive state obligation to establish funding programs for better water and sanitation services and analyzes funding policies by a mathematical model of policy goals. It identifies two viable goals namely the successful support for the poor, as in developing countries, and the most economic use of public funds, as in industrialized countries. Other goals conceivable for the model have been tried in the past and failed.]]>
Laws doi: 10.3390/laws4030377
Authors: Wendy Bonython Bruce Arnold
Revolutions in genetic technology have heralded the age of population-scale genomic metadata. This article analyzes the tensions and gaps between traditional conceptions of personhood and international legal responses to a person's right over disembodied data obtained from his/her body. The opportunities for breakthroughs in healthcare by interrogating population-scale genomic databases are accompanied by questions about privacy, property, dignity, and the nature of information regulation in a global economy. This article highlights instances where law and policy makers have grappled with these challenges, and foreshadows some emerging future challenges. It also highlights differences between jurisdictions, and calls for greater global participation in the development of a coherent framework, rather than continued reliance on a small number of stakeholders, to develop that framework.]]>
Laws doi: 10.3390/laws4030352
Authors: Maya Sabatello
This article explores the practice of gamete donation in the U.S. having in mind the larger question of what do we as a society owe children born as a result (donor-conceived children). Do recipient-parents have a duty to tell their donor-conceived child about his/her genetic origins? Should the identity of the donor be disclosed or remain anonymous? Does the child have a right to know her conception story and to receive information, including identifying information, about the donor? Furthermore, if a donor-conceived child has a right to know, who has the duty to tell her/him about it? The Article underscores the ethical, legal and social dilemmas that arise, comparing and contrasting with international developments in this arena. It highlights the market-based and more specific medical justifications for regulating this field, explores the emerging so-called right of the child to know his/her genetic origins ("the right to know"), and considers the challenges such a right evokes to existing legal culture and principles of medical ethics in the U.S. as well as other broader societal implications of such a right.]]>
Laws doi: 10.3390/laws4030335
Authors: Michael Bloor Susan Baker Helen Sampson Katrin Dahlgren
The shipping industry, although relatively carbon-efficient, is projected to produce rising carbon emissions in the future as a consequence of increasing world trade. A number of candidate regulations designed to mitigate these emissions have been canvassed by the UN's International Maritime Organisation and by the European Commission. Many of these schemes are focussed on the use of market measures—emission trading schemes or fuel levies. This paper draws on observational and interview data gathered to examine enforcement issues associated with the control of ships' sulphur emissions in order to consider the possible enforcement problems that might be associated with projected market measures to control ships' carbon emissions. Enforcement problems are shown to be associated with the globalised character of the industry and its polycentric governance structure.]]>
Laws doi: 10.3390/laws4030314
Authors: Margaret Thornton
There has been a marked shift away from social liberalism in many parts of the world which has profound ramifications for women, whose status remains contingent on the good graces of public institutions that remain resolutely masculinist. Neoliberalism, with its focus on the privatisation of public goods and promotion of the self within the market has become the dominant political ideology everywhere and is further undermining the interests of the majority of women. This essay will address the changing fortunes of sex discrimination legislation as a specific example of an initiative designed to improve the status of women. Australia will be used as a case study because of its passionate embrace of, first, social liberalism, and then, neoliberalism. Issues pertaining to affirmative action (positive action), intersection with human rights instruments, reporting requirements and incentives will also be addressed. Although Australia is a multi-jurisdictional federation, the essay will focus primarily on the federal arena in terms of legislative initiatives, policy and jurisprudence.]]>
Laws doi: 10.3390/laws4020296
Authors: Jill Stavert
Article 12 of the UN Convention on the Rights of Persons with Disabilities, particularly as interpreted in the Committee on the Rights of Persons with Disabilities General Comment No. 1, presents a significant challenge to all jurisdictions that equate interventions permitted under their mental health and incapacity laws with mental capacity. This is most notable in terms of the General Comment's requirement that substitute decision-making regimes must be abolished. Notwithstanding this, it also offers the opportunity to revisit conceptions about the exercise of legal capacity and how this might be better supported and extended through supported decision-making. This article will offer some preliminary observations on this using Scottish mental health and incapacity legislation as an illustration although this may also have relevance to other jurisdictions.]]>
Laws doi: 10.3390/laws4020272
Authors: Su-Ming Khoo
This article examines the central but neglected principle of solidarity in human rights, health and bioethics, a concept subject to contention, evasion and confusion. It addresses the general ambivalence toward solidarity within law, philosophy and politics by discussing solidarity's co-evolution with inegalitarian encapsulations and divisions of human rights. It argues that a renewed conception of solidarity is essential to meet increasingly salient ethical demands, as gender equality and the individualization of responsibilities coincide with deficits of care and collective responsibility. Questions of embodiedness, (inter)dependence, care and asymmetry are neglected by dominant liberal approaches, but are key to rethinking solidarity.]]>
Laws doi: 10.3390/laws4020245
Authors: Piers Gooding Eilionóir Flynn
Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. However, a key criterion for compulsory mental health treatment under typical mental health legislation is a psychiatric diagnosis (in conjunction with risk of harm and other criteria). Hence, for people with mental health disabilities, rights to liberty and consent in healthcare are held to a different standard compared to other citizens. A prominent law reform option being explored by some governments and commentators for achieving non-discrimination is to replace the diagnostic criterion for triggering involuntary intervention with an assessment of mental capacity. After all, every citizen is subject to restrictions on autonomy where they are deemed to lack mental capacity, such as where concussion necessitates emergency service. However, the use of mental capacity "testing" is seen by diverse commentators as wanting in key respects. A prominent criticism comes from the United Nations Committee on the Rights of Persons with Disabilities, which considers mental capacity assessments a form of disability-based discrimination. This article queries the call to replace the diagnostic criterion in mental health law with an assessment of mental capacity in the light of jurisprudence on equality and non-discrimination in international human rights law. Instead, we examine the doctrine of necessity as an area of law, which might help identify specific thresholds for overriding autonomy in emergency circumstances that can be codified in a non-discriminatory way. We also consider the need for deliberative law reform processes to identify such measures, and we suggest interim, short-term measures for creating a "supported decision-making regime" in the mental health context. The article focuses in particular on the Australian context of mental health law reform, though the analysis can be generalised to international trends in mental health law.]]>
Laws doi: 10.3390/laws4020229
Authors: David Gibson
Central to the Mental Capacity Act 2005 (MCA) is the claim that a conferral of incapacity may not be based on the wisdom of a decision alone. This paper problematizes this position. Values-based medicine is drawn on to explore the process of capacity assessment, highlighting the presence of preconceptions throughout assessment. Two cases before the Court of Protection are examined to bring into focus the complexity of conducting assessment without reference to wisdom. The paper proposes that every stage in the assessment of capacity is undertaken with reference to preconceptions and that an acknowledgement of these, along with transparency about when they are to be employed, would allow for greater clarity about what the MCA demands of practitioners.]]>
Laws doi: 10.3390/laws4020216
Authors: Mordechai Kremnitzer Lina Saba-Habesch
This article discusses the nature of "house demolitions" as used by the State of Israel in the West Bank and East Jerusalem. In our opinion, and in contrast to the view of Israel's Supreme Court, such demolition orders constitute a penal sanction. As a penal sanction, we argue that this measure violates the basic principles of criminal liability. Even if this conclusion is not accepted, it will be argued that making innocent people homeless is an illegal collective measure. Even if assuming arguendo that it is not an illegal collective measure, it violates the basic principle of personal responsibility. The general conclusion of the article is that the examination of the nature of sanctions should go beyond the labels that are attached to them. Labeling sanctions as either penal or civil may not always reflect its true nature, and labels are sometimes deliberately used or rather misused in order to escape from the requirements stemming from the true essence of a sanction.]]>
Laws doi: 10.3390/laws4020201
Authors: Bruce White Marleen Eijkholt
The first Code of Medical Ethics promulgated by the American Medical Association (AMA) in 1847 included a provision that essentially obligated physicians to care for those in their communities who could not afford to pay for professional services. The spirit of that provision remains embodied in today's Code. However, a "charity care" ethical obligation may not make as much professional sense as it once did. Health care institutions have assumed a much greater role in providing charity care and many physicians are now under legal and quasi-legal obligations to provide care in some cases. Under the recently enacted Affordable Care Act (ACA)—if fully implemented—it is theorized that as many as 95% of Americans will be covered by some basic insurance plan. Perhaps today's physicians should tailor the charity care mandate into a new jacket, which envisions that all doctors share equally in the care for those without adequate means. An individual obligation may have to make way for a more communal one in professional codes. Moreover, it may be wise to consider if there are any lessons to draw from other health care systems (e.g., the Dutch), where questions about charity care still exist within a universal health care system context.]]>
Laws doi: 10.3390/laws4020173
Authors: Katrine Del Villar
In 2013, and again in 2014, the UN Committee on the Rights of Persons with Disabilities (CRPD) has recommended that Australia abolish its existing mental health laws which authorise involuntary treatment and detention, and replace them with a regime of supported decision-making. The Australian Law Reform Commission has also recommended the introduction of supported decision-making to replace mental health and guardianship laws. This paper critically evaluates the concepts of autonomy and discrimination and the social model of disability which provide the theoretical underpinning of the CRPD. Focussing on coercive treatment of adults with severe mental illness under Queensland's Mental Health Act 2000, it then evaluates the advantages and disadvantages of supported decision-making, and concludes that the proposed abolition of involuntary treatment laws is not justified.]]>
Laws doi: 10.3390/laws4020164
Authors: Marshall Kapp
Adequate cognitive and emotional capacity is essential to autonomous decision making by adult medical patients. Society often attaches legal consequences to decisional capacity evaluations. Even when the legal system is not formally involved in the competency evaluation of a particular individual, clinical practice and ethical conduct occur within and are informed by legal parameters. Using relevant statutory, court rule, and judicial opinion examples from a representative jurisdiction within the United States, this article argues that the law seldom provides much meaningful guidance to health care and human services providers to assist them regarding the content of capacity evaluation. The article concludes by asking how society ought to respond to the paucity of helpful guidance provided by the law in the decisional capacity evaluation context.]]>
Laws doi: 10.3390/laws4020139
Authors: Heidi Gottfried
"Why workers' rights are not women's rights" is an argument whose purpose is to make clear why workers' rights rest on a masculine embodiment of the labor subject and it is this masculine embodiment which is at the center of employment contracts and employment relations systems. By excavating the gender subjects implicit to and explicit in regulations of labor, the paper reveals the opposition of paired terms, masculinity and femininity privileging production over reproduction and naturalizing gender-based power relations. The paper identifies various laboring activities associated with differential rights and responsibilities. An examination of the treatment of part-time employment and waged caring labor, framed in labor, welfare, immigration, and citizenship policies and practices, locates exclusions from labor standards and exemptions from entitlements due to eligibility requirements and thresholds that assume the masculine embodiment of the worker-citizen. Gendering the analysis illustrates how contemporary labor laws and conventions grant rights on the basis of, and to, a rather abstract conception of the prototypical worker-citizen. Its origins lie in what classical political economy labeled a capitalist logic, as well as the historical practices in which free class agents entered into contracts for continuous, full-time work free of care responsibilities outside of the wage/labor nexus. Thus, it is this particular abstract construction of the proto-typical worker which instantiates the separation of "rights to" from "responsibilities for", and it is this separation that allows the masculine embodiment of the labor subject. Modes of regulation privileging rights over responsibilities will valorize the masculine worker-citizen whose rights derive from their participation in wage labor and simultaneously devalue the feminine worker who is directly connected to caring labor.]]>
Laws doi: 10.3390/laws4020125
Authors: Bernadette McSherry
Neuroscientific endeavours to uncover the causes of severe mental impairments may be viewed as supporting arguments for capacity-based mental health laws that enable compulsory detention and treatment. This article explores the tensions between clinical, human rights and legal concepts of "capacity". It is argued that capacity-based mental health laws, rather than providing a progressive approach to law reform, may simply reinforce presumptions that those with mental impairments completely lack decision-making capacity and thereby should not be afforded legal capacity. A better approach may be to shift the current focus on notions of capacity to socio-economic obligations under the Convention on the Rights of Persons with Disabilities.]]>
Laws doi: 10.3390/laws4010107
Authors: Joycelyn Pollock Steven Glassner Andrea Krajewski
Recently, a political shift has been observed, in that some political conservatives are now advocating, adjusting, or abandoning draconian drug laws, including mandatory minimums, and funding diversion, re-entry, and drug programs. Vocal proponents of this movement include Grover Norquist, Rand Paul, Edwin Meese, and Mark Levin, from the Texas Public Policy Council. Any movement away from the mass incarceration that has characterized the U.S. correctional policy for the last 30 years is welcomed; however, it is important to note carefully the philosophical foundation of the conservative's interest in shifting correctional policy. This paper explores the potential factors contributing to this philosophical shift.]]>
Laws doi: 10.3390/laws4010091
Authors: Stephen Richards
USP Marion is the first supermax federal penitentiary. Marionization refers to the experimental control program used at this prison. The prisoners speaking in this article suffered many years of solitary confinement. This research brief discusses some of what they experienced in their own words. These are the recollections of a few Marion prisoners that have summoned the courage to speak out and share their darkest memories.]]>
Laws doi: 10.3390/laws4010082
Authors: Pauline Westerman
There are two ways in which the social ideal of equality has found expression in the law: in the principle of equal treatment and in the principle of non-discrimination. In this article the meaning of these two legal principles is analysed, in order to answer the question to what extent they can be said to contribute to equality in the sense of an equal distribution of collective resources. It is argued that whereas the first just requires decision-making to be rule-based, the second principle demands that rules should be based on sound categorical distinctions. Neither of the two can, however, sensibly be linked to equality as equal distribution. The article concludes that the only way to establish such a link is by adding to the principle of non-discrimination "financial resources" as a suspect ground.]]>
Laws doi: 10.3390/laws4010060
Authors: Stuart Yeh
This article proposes a change in public policy that promises to greatly reduce major crime in the United States, protect society, eliminate prison overcrowding, and save taxpayer dollars. This policy would employ electronic monitoring (EM) technology in a way that discourages individuals who might otherwise be tempted to commit crimes. The approach is arguably more effective, efficient, humane and ethical than any alternative strategy and potentially could revolutionize law enforcement and the American criminal justice system.]]>
Laws doi: 10.3390/laws4010037
Authors: Terry Carney
Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making poses many challenges. Not least of those challenges is in writing laws and devising policies which facilitate access to formal and informal supports for large numbers of citizens requiring assistance with day-to-day issues such as dealing with welfare agencies, managing income security payments, or making health care decisions. Old measures such as representative payee schemes or "nominee" arrangements are not compatible with the CRPD. However, as comparatively routine social security or other government services become increasingly complex to navigate, and as self-managed or personalised budgets better recognise self-agency, any "off the shelf" measures become more difficult to craft and difficult to resource. This paper focuses on recent endeavours of the Australian Law Reform Commission and other local and overseas law reform and policy initiatives to tackle challenges posed both for ordinary citizens and those covered by special programs (such as Australia's National Disability Insurance Scheme and "disability trusts" in Australia and Canada).]]>
Laws doi: 10.3390/laws4010018
Authors: Lara Karaian Katherine Van Meyl
Canada recognizes young people's constitutionally protected freedom of expression and consequently their right to engage in a narrow subset of consensual sexually expressive practices without being prosecuted as child pornographers. Nevertheless, numerous anti-sexting campaigns decry the possibility of voluntary and "safe sexting" let alone the affordances of adolescents' self-produced and consensually shared sexual imagery. In this article, we argue that these actors have erred in their construction of youths' risqué imagery as inherently risky and thus governable. We propose that anti-sexting frameworks—which conflate consensual and nonconsensual sexting and which equate both with negative risks that purportedly outweigh the value and benefits of the practice—rely on a calculus that is fundamentally flawed. This article consists of two main parts. In Part I, we map and trouble the ways in which responses to consensual teenage sexting emphasize the practice's relationship to embodied, financial, intimate and legal risks. In Part II, we suggest that research examining consensual adolescent sexting and young people's rights to freedom of expression consider alternative theoretical frameworks, such as queer theories of temporality, when calculating the risk of harm of adolescent sexual imagery.]]>
Laws doi: 10.3390/laws4010016
Authors: Laws Editorial Office
The editors of Laws would like to express their sincere gratitude to the following reviewers for assessing manuscripts in 2014:[...]]]>
Laws doi: 10.3390/laws4010001
Authors: Erin Kearns
Why does torture persist despite its prohibition? Scholars, policymakers, and the public have heavily debated this topic in the past decade. Yet, many puzzles remain about the practice of torture. Scholarship on torture spans academic disciplines, which adds diversity in perspectives brought to these questions but also can lead to redundancy and stunted progress in research on the issue as a whole. This article assesses the state of the multidisciplinary literature on torture in counterterrorism with specific focus on why democracies torture despite prohibiting it, how public perception of torture is malleable, and why so few countries are able to move from commitment to compliance in the prohibition of torture. In each section, the article also identifies underexplored areas in the research and suggests avenues for future investigation.]]>
Laws doi: 10.3390/laws3040798
Authors: Marieke Liem Jennifer Garcin
Previous research suggests that social relations, in particular the forming of family ties and employment (social factors), self-efficacy (personal factors), and therapeutic interventions (institutional factors) constitute main contributors in post-release success. These studies, however, have largely been based on general delinquents serving relatively short prison terms. This study aims to shed light on the influence of social, personal, and institutional factors on post-release success versus failure among paroled lifers. We conducted in-depth life-history interviews with 64 individuals who had served a life sentence, who were either re-incarcerated for another crime or parole violation, or were currently out on parole. The role of social factors in desistance among long-term incarcerated offenders was minimal. Rather, self-efficacy appeared to be a key element in post-release success. These findings suggest that research based on short-term incarcerated offenders cannot be directly translated to long-term incarcerated offenders. This group does not experience the same traditional turning points, such as establishing family ties and employment. Accordingly, long-term prisoners may go through a different process post-release that determines their success versus failure compared to general delinquents who serve shorter sentences.]]>
Laws doi: 10.3390/laws3040780
Authors: Anne Dannerbeck-Janku Clark Peters Jacob Perkins
While boys who offend have been a dominant majority and primary concern of the juvenile court since its earliest days, the population of delinquent girls has increased in recent years at a far higher rate in the U.S. The special challenges presented by females, however, continue to be generally overlooked by the justice system. Moreover, while a few specialized programs now serve these girls, the field tends to view young female offenders as a homogeneous group; what distinguishes particular female subpopulations and the characteristics associated with different criminal trajectories have gone largely unexplored. Employing data from the state of Missouri, this study examines girls who offend, identifying models that predict subsequent violent behavior that include indicators such as parental substance abuse and incarceration, and offender substance abuse, mental health, and school behavior. Special attention is given to the effects of child maltreatment, which we find significantly, but weakly correlated with violent behavior. The authors conclude by considering the possibility that maltreatment may be correlated with other criminogenic factors, and by discussing the implications of findings for future research and practice, especially services that take into account the trauma experienced by young women who come to the attention of state authorities.]]>