File Name: human rights concept and context .zip
This dissertation intends to assess critically various approaches towards theoretical justifications of human rights, arguing that there can be no grand synthesis thereof. In doing so, it aims to show that the concept of rights is inherently paradoxical, aiming to achieve a utopian ideal, yet, simultaneously, resorting to new forms of domination. The study concludes by calling for a revaluation of human rights in terms of affirming the principle of difference, instead of equality.
According to a longstanding definition of non-discrimination, differential treatment does not constitute discrimination if the purpose or effect of the differential treatment is to achieve a legitimate aim and if the differential treatment can be objectively and reasonably justified. I conclude that the CRPD and its treaty body send mixed signals in relation to the pragmatic definition: The convention itself is silent as regards the pragmatic definition, and while the committee has in some instances invoked it, it also seems to be pointing toward a new approach that goes beyond the pragmatic definition.
Human rights are universal and inalienable; indivisible; interdependent and interrelated. They are universal because everyone is born with and possesses the same rights, regardless of where they live, their gender or race, or their religious, cultural or ethnic background. Indivisible and interdependent because all rights — political, civil, social, cultural and economic — are equal in importance and none can be fully enjoyed without the others. They apply to all equally, and all have the right to participate in decisions that affect their lives.
According to a longstanding definition of non-discrimination, differential treatment does not constitute discrimination if the purpose or effect of the differential treatment is to achieve a legitimate aim and if the differential treatment can be objectively and reasonably justified.
I conclude that the CRPD and its treaty body send mixed signals in relation to the pragmatic definition: The convention itself is silent as regards the pragmatic definition, and while the committee has in some instances invoked it, it also seems to be pointing toward a new approach that goes beyond the pragmatic definition.
I survey three possible alternatives to the pragmatic definition, tracing each to suggestions in the jurisprudence of the Committee on the Rights of Persons with Disabilities, and illustrating how each can be applied in determining whether coercive psychiatry is discriminatory. Discrimination, de jure and de facto, continues to influence mental health services, depriving users of a variety of rights, including the rights to refuse treatment, to legal capacity and to privacy, and other civil and political rights.
The role of psychiatry and other mental health professions is particularly important and measures are needed to ensure that their professional practices do not perpetuate stigma and discrimination. But what exactly is meant by discrimination? Can people be treated differently in an unfavorable way? If so, can unfavorable treatment be justified in some circumstances?
Can a protected characteristic ever be the basis for such treatment? If not all differential treatment constitutes discrimination, then we need a method for determining whether a particular policy or practice is justifiable —even if its application has an unfavorable impact on persons with one or more protected characteristics.
Let us put these questions into the context of coercive psychiatric interventions. Under what circumstances can people be treated against their will on the basis of their actual or perceived impairment?
This is a question to which many lawyers may think they know the answer: If a less favorable treatment on the basis of a protected ground has a legitimate aim and is objectively and reasonably justified , it cannot be viewed as discrimination. Similarly, many psychiatrists may also think they know the answer: Deprivation of liberty in a mental health care facility and coercive mental health treatment can be justified when certain criteria which are either explicitly or implicitly linked to the notions of legitimate aim, objectivity, and reasonability are satisfied.
These familiar positions are based on a longstanding principle of non-discrimination: the principle that differential treatment does not constitute discrimination if the purpose or effect of the differential treatment is to achieve a legitimate aim and if the differential treatment can be objectively and reasonably justified. Under this familiar approach, even laws and policies that would otherwise be tantamount to direct discrimination on the basis of disability can in principle be deemed compliant with human rights standards—so long as the disadvantageous differential treatment can be justified.
But does this approach remain valid in light of 21st-century developments in international human rights law? In order to answer these questions, I proceed as follows: I begin by analyzing the standard for legal defenses against allegations of discrimination in UN human rights treaties and in the interpretative instruments of their treaty bodies.
I then focus on whether the text of the UN Convention on the Rights of Persons with Disabilities CRPD calls for rejection or acceptance of the well-established justification defense standard. Finally, I propose candidates for alternatives to the broadly used justification defense in allegations of discrimination. Before turning to the matter at hand, it is worth reminding ourselves of the broader significance of the issues explored here.
This legal analysis can have enormous consequences not only for the interpretation of fundamental international human rights standards but ultimately for determining what forms of unfavorable treatment persons with disabilities can lawfully be subject to, and what defenses are available to states when they are accused of discriminatory treatment. According to a longstanding schema for defense against allegations of discrimination, differential treatment in a comparable situation does not constitute discrimination if the purpose or effect of the differential treatment is to achieve a legitimate aim and if the differential treatment can be justified objectively and reasonably.
This pragmatic definition of discrimination does not come from the treaties themselves; rather, it was worked out by treaty bodies, particularly by the UN Human Rights Committee HRC. The HRC has often relied on this formula in its case law and has constructed its jurisprudence on this approach to justification.
In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects. Up to this point, we have seen that the pragmatic definition of discrimination, together with the associated schemas for justifying differential treatment, have been explicitly endorsed by UN treaty bodies monitoring the implementation of the three oldest UN treaties. But what are the opinions of the treaty bodies that oversee the more recent UN conventions?
Fifteen years later, the positions of these two treaty bodies remain unclear, but some relevant traces can be found, particularly in dissenting opinions of the CEDAW Committee. Although these cases are not related to coercive interventions or to persons with psychosocial disabilities, their impact on the pragmatic definition of discrimination is significant. There was a concurring opinion that also found the application inadmissible because it was incompatible with the provisions of the UN Convention on the Elimination of All Forms of Discrimination against Women CEDAW insofar as the title of nobility in question did not have any legal effect.
In her dissenting opinion, she argued:. First of all I acknowledge that the right to titles of nobility is not a fundamental human right and may not be of much material consequence to the author.
However, the legislation and practice of States parties must in no way and in no context provide for a differential treatment of women and men in a manner that establishes the superiority of men over women and concomitantly, the inferiority of women as compared to men. This is what the law of 4 May and 11 October does.
In other words, if we accept that less favorable treatment on the basis of gender constitutes discrimination under all circumstances, then less favorable treatment on the basis of gender automatically amounts to gender-based discrimination. They submitted that French legislation governing family names contravened the principle of equality between parents and constituted a violation of article 16 1 g of the convention. With their statement, however, they acknowledged that less favorable treatment on the ground of sex could be justified:.
It is a clear obligation of all States parties to the Convention to uphold the principle of equality between women and men in their legislation and to ensure practical realization of this principle article 2 and to abolish and change stereotypes on roles of women and men article 5. This means that very weighty reasons would have to be put forward before a difference of treatment on the sole ground of sex could be regarded as compatible with the Convention.
From the circumstances of the case, it is clear that the concept of difference of treatment is meant to be less favorable treatment , which means that one-third of the members of the CEDAW Committee acknowledged the possibility in principle of a justification defense when it comes to gender-based less favorable treatment.
In other words, six dissenting members of the CEDAW Committee showed a commitment to the pragmatic definition of discrimination, while the majority remained silent on it, deciding the issue on different grounds. It includes all forms of discrimination, including denial of reasonable accommodation. This article is of limited value in determining whether the convention adheres to the pragmatic definition. It explicitly tells us that discrimination is present if the following conditions are met: 1 the person concerned has an impairment or disability; 2 there is a less favorable treatment compared to others; 3 there is a link between the impairment and the less favorable treatment either intentional or unintentional ; and 4 the purpose or effect of the less favorable treatment is impairing or nullifying the recognition, enjoyment, or exercise of any of the human rights and fundamental freedoms.
However, the article is silent on the following aspects: 1 whether less favorable treatment on the basis of disability may have a legitimate purpose or effect and 2 whether there is any room for objective and reasonable justification. At first sight, then, the CRPD, like the other UN human rights treaties, neither explicitly rejects the pragmatic definition of discrimination nor explicitly relies on it. How should this silence be decoded?
I suggest focusing on three provisions of the VCLT. Alas, two different answers can be offered here. This approach would be tantamount to acceptance of the pragmatic definition of discrimination. On the other hand, it might be held that the aim of the CRPD precludes the pragmatic definition and its associated schemas for justifying differential treatment.
Under this construction, the objective of ensuring the full enjoyment of all human rights by all persons with disabilities is simply incompatible with policies that restrict rights and freedoms on the basis of disability.
Where circumstances arise in which the balancing of conflicting rights is required, this must never be done in a way that is tantamount to unfavorable treatment on the basis of disability. But this by itself does not show that the CRPD diverges from the pragmatic definition of discrimination. If we accept this argument, then the absence of such a justification clause might be taken as an indication that the CRPD rejects the pragmatic definition of discrimination.
However, the International Convention on the Elimination of All Forms of Racial Discrimination does not contain any justification clause either, but the interpretation of the CERD is in favor of the pragmatic definition of discrimination. Application of the VCLT rules therefore does not provide a decisive indication as to whether the CRPD should be interpreted as conforming to the pragmatic definition or departing from it.
In , the CRPD Committee produced an outline of its draft general comment on equality and non-discrimination and invited public comment on the document. He encouraged the committee to address the issue of how differential treatment can be justified:.
It would be useful for the Committee to clarify that the prohibition of discrimination on the basis of disability does not mean that differential treatment on the basis of disability is always a violation of the Convention per se, without any consideration of the explanation that is put forward to justify the differential treatment. Following the consultation process on its outline, the CRPD Committee defined direct discrimination in its draft general comment but did not mention explicitly any possibility for justification.
But this hybrid position was not ultimately the one adopted by the committee. The final version of General Comment No. What is a matter of public record are the public comments that the committee received, both on its outline and on its draft of General Comment No. Neuman, together with the Equal Rights Trust and the Danish Ministry for Children and Social Affairs, expressed support for inclusion of the pragmatic definition of discrimination. In the examples of disability-based violence, please include forced psychiatric interventions.
It would be helpful also to include … forced hospitalization … as examples of direct discrimination. It may be that the comments of persons with disabilities and their organizations were more influential on the committee than submissions from other sources.
It is not entirely clear whether the CRPD Committee wanted to refer in both direct and indirect discrimination cases to the entire content of paragraph 10 of General Comment No. The ultimate test of any definition of discrimination must concern its application to concrete cases.
In order to provide the fullest possible accounting, this section expands the scope of my analysis to include all discrimination cases considered by the committee—and not just those addressing the specific topic of involuntary mental health interventions.
As of October , the CRPD Committee had dealt with 15 individual applications in which either direct or indirect discrimination was addressed.
Direct discrimination was addressed by the committee in three cases. In none of these cases did the committee invoke the pragmatic definition of discrimination:.
Indirect discrimination was addressed by the committee in eight cases seven adoptions of views and one inadmissibility decision. Out of the seven adoptions of views, three cases used the pragmatic definition of discrimination and four cases did not.
In surveying these cases, we can distinguish three different stances taken by the CRPD Committee toward the pragmatic definition of discrimination. The committee relied on the pragmatic definition of discrimination in three cases about allegations of indirect discrimination: H. Sweden , Marlon James Noble v. Australia , and Iuliia Domina and Max Bendtsen v. The only meaningful rehabilitation was hydrotherapy in an indoor pool. In the case of Iuliia Domina and Max Bendtsen v.
The applicants were a married couple. Bendtsen had brain damage following a car accident in and consequently received social benefits, as he could not support himself through employment. In May , the applicants applied for family reunification and a residence permit for Ms. Domina in Denmark based on their marriage, which they had celebrated in April In both H. Sweden and Iuliia Domina and Max Bendtsen v.
In Marlon James Noble v. Australia , the applicant was an Aboriginal man with intellectual and psychosocial disabilities. In , when he was 19 years old, he was charged with child sex abuse and was arrested. The court found that the applicant was unfit to plead and subjected him to a custody order.
Because the applicant did not have the opportunity to plead not guilty, the court made no finding of guilt. The issue before the Committee is therefore to assess whether the differential treatment provided under the Act is reasonable or whether it results in discriminatory treatment of persons with disabilities. Thus, the CRPD Committee has explicitly adopted the pragmatic definition in indirect discrimination cases, even though the final version of General Comment No.
The treaty body did not address the pragmatic definition of discrimination in four cases where it dealt with the issue of indirect discrimination. For example, the cases of Michael Lockrey v.
Australia , Gemma Beasley v.
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In exercising these functions, the Commissioner is also required to have regard to additional human rights instruments where appropriate, namely:. Simple definitions that are often given include: the recognition and respect of peoples dignity a set of moral and legal guidelines that promote and protect a recognition of our values, our identity and ability to ensure an adequate standard of living the basic standards by which we can identify and measure inequality and fairness those rights associated with the Universal Declaration of Human Rights.
Human rights are commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being. This chapter examines the concept of human rights and its origins, explaining the different terms and classifications. The origins of human rights may be found both in Greek philosophy and the various world religions. In the Age of Enlightenment 18th century the concept of human rights emerged as an explicit category.
Considered a foundational text in the history of human and civil rights , the Declaration consists of 30 articles detailing an individual's "basic rights and fundamental freedoms" and affirming their universal character as inherent, inalienable, and applicable to all human beings. Although not legally binding , the contents of the UDHR have been elaborated and incorporated into subsequent international treaties, regional human rights instruments, and national constitutions and legal codes. Cassin compared the Declaration to the portico of a Greek temple, with a foundation, steps, four columns, and a pediment.
The purpose of this article is to reopen the debate on some conceptual issues of human rights, for the purpose of relaunching and revitalizing a politically mobilizing agenda for Latin America. The author defends the priority of civil and political rights over economic and social rights by reformulating, for example, the right to education, which has traditionally been understood to be part of economic and social rights. He also contends that it is both urgent and necessary to address through political action, and not within the domain of human rights, issues that raise controversies of a moral character in society.
И дело тут не только в АНБ, речь идет обо всем разведывательном сообществе. Наша машина обеспечивает информацией ФБР, ЦРУ, Агентство по борьбе с наркотиками - всем им теперь придется действовать вслепую. Не удастся отслеживать перемещение грузов наркокартелей, крупные корпорации смогут переводить деньги, не оставляя никакого следа и держа Налоговое управление в полном неведении, террористы будут в полной тайне готовить свои акции. Результатом будет полнейший хаос. - А Фонд электронных границ будет праздновать победу, - побледнела Сьюзан. - Фонд понятия не имеет о том, чем мы тут занимаемся, - презрительно бросил Стратмор. - Если бы они знали, сколько террористических нападений мы предотвратили благодаря тому, что можем взламывать шифры, они запели бы по-другому.
Две эти команды разделяло меньше одной минуты, но она была уверена, что разговаривала с коммандером больше минуты. Сьюзан просмотрела все команды. То, что она увидела, привело ее в ужас. С интервалом в три минуты была зарегистрирована вторая серия команд запирания-отпирания.
Тот, конечно, был мастером своего дела, но наемник остается наемником. Можно ли ему доверять. А не заберет ли он ключ. Фонтейну нужно было какое-то прикрытие - на всякий случай, - и он принял необходимые меры. ГЛАВА 113 - Ни в коем случае! - крикнул мужчина с короткой стрижкой, глядя в камеру. - У нас приказ. Мы отчитываемся перед директором Лиландом Фонтейном, и только перед .
Годы тренировки. Ложь была единственным способом избавить тебя от неприятностей. Сьюзан кивнула. - А неприятности немалые.
Никто никогда не позволял себе говорить с заместителем директора АНБ в таком тоне. - Сьюзан, - проговорил он, стараясь сдержать раздражение, - в этом как раз все. Мне было нужно… Но тигрица уже изготовилась к прыжку. - В вашем распоряжении двадцать тысяч сотрудников.
Рыжеволосая? - переспросила. Пауза.
The right to development in the context of the Agenda, the. Sustainable The international community affirmed the holistic concept of human rights at the 23 (), hazarsiiraksamlari.org 10 “For the.Philneyvewil1972 02.05.2021 at 05:11
Insofar as the mass media pay attention to human rights questions and issues, their focus is primarily on international relations and foreign policy.Lope Q. 02.05.2021 at 06:57
The concept of human rights is also invoked with increasing frequency in the context of security issues and as justification of armed conflictLena B. 04.05.2021 at 04:16
rights concepts and human rights indicators, the combination of which is essential for human rights and domestic law since the Universal Declaration of Human Rights. used across different political contexts are prone to cultural biases, where the meaning hazarsiiraksamlari.orgaaas_peru_hazarsiiraksamlari.org 6. Ball.