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Abstract

Informed consent has been inconsistently conceptualised as a right, an immunity or even a power in the hands of the patient, which leaves its legal definition as partially indefinite.

From the norms of the CHRB, a legal theory stance and the proposals of celebrated authors — namely, W.N. Hohfeld, H. Kelsen and R. Alexy, I will provide a steady conceptual structure for the subjective legal positions of the parties involved in the healthcare relationship regarding informed consent.

In: European Journal of Health Law
Author: Marius Pieterse

Abstract

This article illustrates the transformative potential of guaranteeing justiciable socio-economic rights in domestic law, by engaging with the judicial vindication, over nearly a quarter-century, of the right to housing in the South African Constitution. Initial assessments of housing rights litigation in the country suggested that, while the right provided temporary protection against eviction and could provide temporary relief in housing emergencies, it was of limited use in addressing spatial injustice and unequal access to affordable housing. But over time, judicial vindication of the right to housing has given poor and vulnerable communities a foothold in cities, which is productively being leveraged by social movements claiming a right to the city. Meanwhile, separate remedial frameworks around land rights and political participation appear to be slowly converging with the housing jurisprudence, in ways that hold significant potential for transformative change in South African cities.

In: International Human Rights Law Review

Abstract

Network disruption has become commonplace in Ethiopia in the past few years. Be it for preventing exam leaks, the spread of disinformation, or to fight off cyber-attacks, the government has repeatedly disrupted communication networks. However, the legal basis with which the government often shuts down the Internet or disrupts other means of digital communications remains unclear. Despite a recent attempt by the Federal Attorney General to offer some legal justification, the legality of network disruptions under Ethiopia law is questionable. This short article considers the legality of network disruptions under Ethiopian law. Having rejected the legal justifications of the Attorney General, this article argues that the current cybercrime legislation offers a rather sound legal basis for certain forms of network disruption in Ethiopia. It further considers the pertinence of rules dealing with network disruption introduced in the cybercrime Bill (2020). The article suggests that the Bill’s network disruption rules are mostly progressive, but there remains the need for a freestanding legal framework equipped with appropriate safeguards against arbitrary practices.

In: African Journal of Legal Studies

E. Aristova, Civil Remedies and Human Rights in Flux: Key Legal Developments in Selected Jurisdictions (Bloomsbury Publishing, 2022)

E. Andrew, The UN Declaration on the Rights of Indigenous Peoples: A New Interpretative Approach (Oxford University Press, 2021)

J. Andrew and F. Bernard, Human Rights Responsibilities in the Digital Age: States, Companies, and Individuals (Cambridge University Press, 2021)

W.C. Booth, Human Rights and Justice for All: Demanding Dignity in the United States and around the World (Routledge, 2022)

T. Buchanan, Amnesty International and Human Rights Activism in Postwar Britain, 1945–1977 (Cambridge

In: International Human Rights Law Review
Author: Roger S. Clark

There have been many proposals on the table encouraging Permanent Members of the Security Council (P5) to refrain voluntarily from exercising the veto in certain cases involving themselves or their clients, particularly when Chapter vii decisions are being contemplated. Consider, for example, the French/Mexican initiative supported by 105 states, the act Code of Conduct, with 122 adherents, and the early efforts in relation to R2P, ultimately withdrawn. The premise for such proposals is that the P5 are possessed of unbridled power under the UN Charter to veto proposed resolutions at will, with no recourse to principle

In: Global Responsibility to Protect
Author: Phyu Phyu Oo

When populations become targets of war and mass human rights abuses are perpetrated, health consequences arise not only from injury, but also from many other societal traumas 1 resulting from constant ‘discrimination, disempowerment, and social exclusion’. 2 Public health and mental health responses play a significant role in relieving and aiding affected communities to recover from injuries and traumas. However, there is little discussion about how such responses can widely engage the social, economic, and cultural realms of society to assist in preventing atrocity crimes. In their book, Getgen Kestenbaum, Mahoney, Meade, and Fuller offer a fresh perspective

In: Global Responsibility to Protect

Abstract

This article aims to answer the question: what motivates national courts (not) to make a request for an advisory opinion from the European Court of Human Rights under Protocol 16 (P16)? An initial answer is given based on literature on the echr and the EU preliminary ruling procedure. This article also conducts a case study on a most likely case for the use of P16 given the prominent role of the echr: the Netherlands. We conclude that the potential eagerness of national courts to use P16 is limited. The three identified different motives (legal, pragmatic, and politico-strategic) all point in the direction of timid courts foregoing a request based on P16. We therefore call on Strasbourg to sharpen the sword offered by P16 and discourage the inclination of national courts to arm themselves with sizeable shields to resist Strasbourg’s involvement.

Open Access
In: European Convention on Human Rights Law Review

Abstract

The recent discussions on the 2021 Myanmar’s coup have overshadowed the ‘old’ issues, and the Rohingya crisis in particular. In this article, we draw the interest back to one of the most challenging crises of all. We discuss how the main actors shape the image of the Rohingya crisis narratively. How is the conflict narrated? Do competing narratives share anything in common? We argue that all actors produce different and to some extent mutually exclusive images of the conflict. We also find that there are no divergences within the actors’ narratives of the conflict, which suggests that they are more engaged in advocating their political aims than finding a bridging point for further negotiations on the conflict. Our argument is substantiated by an analysis of the narratives articulated by five actors: the United Nations, the Association of Southeast Asian Nations, the Myanmar government, Bangladesh, and the Rohingya themselves.

In: International Journal on Minority and Group Rights

Abstract

Although international criminal law has developed significantly in the 75 years following the Nuremberg Tribunals, the challenge to the legality principle at the heart of its practice remains unaddressed. This article discusses the structural challenges to international criminal law’s legitimacy, beginning by deconstructing the progress paradox that simultaneously legitimizes and undermines international criminal law. Because these challenges are situated in questions of how actions are legally characterized at international criminal law, the article moves on to consider two recent icc cases that demonstrate two aspects of this fundamental challenge to international criminal law practice at work. These cases, the article argues, demonstrate the doctrinal problems that arise from a legal form that bases its legitimacy on its promise of progress.

In: International Criminal Law Review

Abstract

The quest for the restitution of cultural property has not been an easy endeavour. Despite the availability of multiple legal regimes securing various channels for the restitution of cultural property, improvement has been quite sluggish. This article argues that the debacle to the restitution process lies in the simultaneous operation of two diametrically opposed conceptions of cultural property- the nationalist and internationalist schools of thought. The 1954 Hague Convention sees cultural property as the cultural heritage of all mankind whilst the 1970 Convention takes the view that it is the cultural heritage designated by each country. These two approaches have been used to characterise nations theoretically in the international arena into source nations with nationalistic interests and market nations with international concerns.

The conflict between both conceptions of cultural property becomes evident where the nationalists seek to employ legal and extra-legal means to protect their cultural heritage and facilitate their return and restitution; whereas, internationalists sabotage these efforts on the ground that cultural heritage is the common heritage of mankind thereby contradicting the notion of return.

This article finds that although both schools of thought have divergent propositions, they nonetheless share a common theoretical underpinning- utilitarianism, which validates their respective ideologies. Since utilitarianism supports the maximisation of the overall happiness of a collective group, nationalists can predicate the protection of their cultural heritage on the need to secure this happiness just like the internationalists.

This article, therefore, seeks to examine if the common theoretical foundation which both schools of thought share can serve as a reconciliatory tool that bridges the gap between them towards the promotion of the interest of the international community in protecting cultural heritage.

In: African Journal of Legal Studies