Laws, Volume 5, Issue 2 (June 2016) – 12 articles

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. Full article

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. Full article

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. Full article

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. Full article

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. Full article

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. Full article

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. Full article

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. Full article

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. Full article

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. Full article

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. Full article

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. Full article