International Journal of Human Rights and Constitutional Studies (13 papers in press)
THE LEGAL AND ETHICAL IMPLICATIONS OF POSTHUMOUS REPRODUCTION IN KENYA
by Michael Wabomba Masinde, Metrine Jepchirchir Kurutto, Joy Naliaka Masinde
Abstract: This article keenly examines the complex moral, ethical and legal concerns that have arisen as a result of posthumous assisted reproduction (PAR) Questions such as what constitutes informed consent, and whether it is ethical to retrieve spermatozoa from patients who are in a coma or dead are considered. Legal issues such as whether gametes can be considered as property. There is alsothe need to clarify the legal meaning of paternity in relation to children born in posthumous reproduction circumstances. The need to respect and honour the wishes of the deceased donor and the most important of them all is protection of the interests of the unborn child are outlined. The intention of the gestating woman should also be made clear, sometimes the desire of undergoing a posthumous assisted reproduction may arise due to the grieving process. This article asserts the need of recognizing the legal and social status of the child and the written consent of the deceased donor.
Keywords: Gametes; Gamete Cryopreservation; Embryo;Conception; Posthumous sperm procurement; Posthumous insemination; Death and Consent.
Climate refugees, and their refugee status
by Kunal Kanodia
Abstract: This article explores the manner in which the growing problem of climate refugees poses a significant legal, social and ethical challenge to international humanitarian law. It takes note of the obligations of the Global North, and takes into account different humanitarian and legal arguments that have been acknowledged by national courts. It goes on to talk about legal obligations to deal with climate change in the Netherlands, and what this means for climate refugees. It proposes solutions, and emphasizes the necessity of a synthetical approach to accommodate climate refugees.
Keywords: climate refugee; refugee; climate change; international law.
Emotions and epistemology: a path for reconsideration in the 21st century
by Maximiliano E. Korstanje, Adrian Scribano
Abstract: The present paper explores the dicthomies of sensations and emotions in the global capitalism. We held the thesis that there are diverse ways to systematize the theoretical orientations on which the studies on the body/emotion are based; a possible one, having in mind the Latin American context and without intent of exhaustiveness, is the following: a) a line of work connected to Foucault and his concepts of control, discipline, and technologies of the self; b) an approach connected to Bourdieu and his notions of habitus, body hexis, and social fields; c) a set of investigations in the field of biopolitics referring to Esposito and Agamben on the one hand, and to Negri and Hardt on the other; and d) the investigations that, from a post-colonial vision, take up corporality on a track toward anti-hegemonic thought.
Keywords: capitalism; globalization; sensations; migration; emotions.
The independent candidate case by the African Court of Human and Peoples Rights revisited
by ALEXANDER MAKULILO
Abstract: In June 2011, the Tanganyika Law Society, the Legal and Human Rights Centre and Rev. Christopher Mtikila filed in the African Court on Human and Peoples Rights applications instituting proceedings against the government of the United Republic of Tanzania claiming that the government had, through certain amendments to its Constitution, violated its citizens right of freedom of association, the right to participate in public affairs and the right against discrimination by prohibiting independent candidates to contest Presidential, Parliamentary and Local Government elections. In its judgment of 14 June 2013, the Court found that the government violated Articles 2, 3, 10 and 13 (1) of the African Charter on Human and Peoples Rights. The Court directed the government to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the observed violations. This article revisits this case to understand the reluctance by the government towards independent candidates.
Keywords: Independent candidates; constitutionalism; Africa; Tanzania; Mtikila.
A CRITIQUE OF KENYAS HUMAN RIGHTS FRAMEWORK THAT PROTECTS CHILDREN LIVING WITH HIVS RIGHT TO ACCESS COMPREHENSIVE TREATMENT
by Irene Maithya
Abstract: The course of HIV and AIDS is particularly aggressive in children. All children have the right to enjoy the highest attainable standard of mental and physical health as enshrined in various international human rights instruments. All these treaties have been ratified by Kenya and form part of the domestic legal order as the state is monist. This study explores the concept of access to comprehensive treatment for Children Living with HIV (CLHIV) in Kenya. The study specifically seeks to analyze Kenyas international human rights obligations in ensuring that CLHIV access comprehensive treatment. It is argued that the implementation of these protections remains problematic. This study demonstrates that the Kenyan governments HIV policies, institutions and legal framework manifest gaps and hurdles that hinder access to comprehensive treatment.
Keywords: Children Living with HIV; child; rights-based approach; HIV and AIDS; ‘comprehensive treatment’ and international human rights law.
The False Promise of Human Rights-Based Approach to Freedom of Information Laws
by Ha Dang Trung
Abstract: This article explores a normative ideal of human rights-based approach (HRBA) to Freedom of Information (FOI) laws and why it has failed in practice in many countries. Arguably, a HRBA, which stresses the intrinsic values of a right to access state-held information, is claimed as an essential approach to drafting of FOI laws. However, the approach cannot operate in a vacuum, and its adoption should depend on local political, economic, and cultural contexts. Instrumentalism links FOI laws to the function of a tool for accountability, effect of public administration or globalisation led to a deficit of common principles agreed to for FOI laws and does not go far enough in protecting the right of access to state-held information as a human right.
Keywords: Freedom of Information; Human Rights; Accountability; Public Administration; Globalisation.
The historical evolution of the right of conscientious objection to military service in the UN human rights system: 1950-2017
by Andreas Yiannaros
Abstract: This paper discusses the emergence and historical development of the right to conscientious objection to military service within the United Nations framework for the protection of human rights, through the drafting history of the International Covenant on Civil and Political Rights 1966. It further explores conscientious objection as a fundamental aspect of the right to manifest ones thought, conscience and religion and it outlines the jurisprudence of the UN Human Rights Committee in relation to conscientious objection to military service from 1981 to 2017 to illustrate the Committees changing approach to the matter and its steps to ensure compliance with international human rights standards. This paper contributes to academic knowledge by exploring the semantic restraints of the International Covenant on Civil and Political Rights and casting light on the delayed response of the UN human rights system in adopting a more liberal approach to the interpretation of the Covenant, which finally recognised through its monitoring bodies - that conscientious objection to military service is an integral part of the right to freedom of thought, conscience and religion.
Keywords: conscientious objection; military service; freedom of thought; conscience and religion; human rights; military ethics; war and peace studies; United Nations.
Special Issue on: Conflictos De Derechos Fundamentales En El Espacio Público Fundamental Rights Conflicts In Public Spaces
THE DEMOCRATIC FUNCTION OF EDUCATION: HOW TO SOLVE SOME CONFLICTS IN THE EDUCATIONAL PUBLIC SPACE
by Leonardo Alvarez
Abstract: The present paper aims at defining the public space of education in a democratic Constitution, as well as its relationship with other public spaces. The function of the educational public space is to incorporate the pluralism and diversity that exist in society and other public spaces, in order to democratically reorient the exercise of fundamental rights back towards the public space. This paper endeavours to analyse some of the conflicts that have arisen within the educational field, both in Spain and in Europe, and tries to provide solutions to these conflicts from the basis of the democratic function fulfilled by education in the public space.
Keywords: Constitutional theory; democratic constitution; public space; pluralism; right to education; democratic education.
Public spaces and the exercise of fundamental rights in Spain following the approval of the Organic Law for the protection of public safety
by Miguel Presno Linera
Abstract: This study is primarily an analysis of Organic Law 4/2015, 30 March,rnof the protection of public safety as a paradigm of the stigmatisation of public disorder and political, cultural and social life on the streets, in the face of which it aims to achieve a kind of civic tranquility. In the new public space 2.0 those who take their grievances and protests to the streets and public infrastructure, those who publish images without prior police authorisation, and even those who are simply trying to find a way to survive on the streets, are considered enemies of that tranquility. Despite the undoubted improvement of the laws wording compared to the shameful draft, which came in for especially harsh criticism from the Prosecutorial Advisory Board and the General Judicial Council, this rule represents the translation of the premises of the most recent reforms of the Criminal Code to punishment under administrative law: the criminalisation of public spaces to impede the rise of the dangerous classes.
Keywords: State of Law; fundamental rights; public safety; demonstrations,rnstreet protests; public order.
HATE SPEECH IN PUBLIC SPACE: A VIEW FROM THE NORTH AMERICAN DOCTRINE OF CLEAR AND PRESENT DANGER
by Abel Arias-Castaño
Abstract: This study addresses the debate about the constitutionality of legislation outlawing so-called hate crimes starting from an analysis of some of the most significant decisions in United States Supreme Court case-law, rulings which follow a famously different doctrinal model than the European guidelines and case-law in this area (which is that currently followed by the Spanish Criminal Code). The study also identifies the possibilities and difficulties of application that exist within US case-law around the use of the doctrine of Clear and Present Danger in this matter. It is an analysis that shows us a theory which, on the constitutionality of such expressive behaviours, can, with seemingly impossible duality, work as an (inadequate) applied instrument of the doctrine of hate speech, and at the same time, function as a construction with the opposite theoretical approach. This is a paradox that can only be resolved by identifying and differentiating the various models within the theory of Clear and Present Danger, which is frequently and erroneously conceived of and explained as a single model.
Keywords: Fundamental Rights; Freedom of speech; Public space; Hate speech; First Amendment; Clear and Present Danger Test.
VIDEO SURVEILLANCE, PUBLIC SPACE AND FUNDAMENTAL RIGHTS
by Asuncion De La Iglesia Chamarro
Abstract: Abstract: The massive presence of cameras in the public space is not neutral in terms of rights and freedoms. Insofar as we are addressing an increasingly panoptic public space, it is necessary to reconsider whether the guarantees of rights are sufficient, given that technological development means that today video cameras can obtain, track, process and disseminate information in a manner that, without the necessary guarantees, may become dehumanising. This paper contextualises video surveillance and the latest technological developments within the framework of the society of liquid surveillance and details the rights and freedoms that may be affected when the latter is employed in the public space. Finally there is analysis of the legal treatment of video surveillance in the public space and space that is accessible but with private security and the shortcomings of legal systems.
Keywords: Video surveillance; fundamental rights ; public space; drones; privacy ; right to data protection ; Commissions of Guarantees for video surveillance; public security and private security.
Rethinking Emergencies and Constitutional Rights in a Time of Terror Threat in the Czech Republic: A Need for Recalibration of Emergency Law?
by Lukas Hrabovsky
Abstract: Nowadays, governments are facing several security issues endangering directly security of state and individual freedoms; one of them is terrorism. Accordingly, terrorism endangers not only national security but also a paradigm of modern constitutionality by pushing governments to meet the terrorist threat on its own playground. Ensuring security and ability to defend state and citizens is one of the essential functions of modern democratic state based on the rule of law and it is also presupposition of every states sovereignty. One of the instruments serving to ensure and preserve security of state and individuals are emergencies. When facing terrorist threat, governments usually stand before a difficult question: should constitutional safeguards be ignored, suspend or even removed in time of terrorist threat? Should we activate emergency powers which enable governments to overcome crisis and restore state of normalcy? More recently, another interesting question closely linked with relationship between terrorism and emergency follows the surface: Should governments adopt special state of emergency law to combat terrorism or can they operate sufficiently with existing regimes of emergency? This dilemma will be addressed in the context of Czech legal order.
Keywords: Terrorism; constitutional rights; limitation; suspension; fundamental rights; security; emergency; state menace.
(In) equality on grounds of sex/gender in the (welfare States) public space
by MARIA VALVIDARES SUAREZ
Abstract: This work explores the relationship between inequality on grounds of sex and the public space. Gender studies have devoted particular attention to the separation between public and private spheres, which has naturalised the functions of men and women, thus justifying the exclusion of women from the public sphere and the subordination of the private domestic sphere. But the private sphere may also be understood as personal autonomy for the exercise of fundamental rights. On the basis of this reading, there is a call for the incorporation of the gender perspective into the construction of the public space par excellence the city-, as a driving force for equality in the enjoyment of rights. Finally, there is a reflection upon the conflicts provoked by the exercise of various freedoms in the public or semi public space and their impact upon equality between men and women.
Keywords: femminist constitutional theory; equality on grounds of sex; public space; women’s rights to the city; right of admission; sexist advertising.