Indigenous ontology, international law and the application of the Convention to the over-representation of Indigenous children in out of home care in Canada and Australia
هستی شناسی بومی ، حقوق بین الملل و اعمال کنوانسیون در نمایندگی بیش از حد کودکان بومی در مراقبت از خانه در کانادا و استرالیا-2020
This paper explores the efficacy of the United Nations Convention on the Rights of the Child (Convention, UN General Assembly, 1989) through the lens of the over-representation of First Nations children placed in out-of-home care in Canada and Aboriginal and Torres Strait Islander children in Australia. A general overview of Indigenous worldviews frames a discussion on the coherence of international human rights law and instruments, including the Convention, account for Indigenous Peoples’ ontologies. The authors argue that the United Nations Declaration on the Rights of Indigenous Peoples (UN General Assembly, 2007) and a new theoretical framework published by the Pan American Health Organization (2019) on health equity and inequity are useful tools to augment the Convention’s coherence with Indigenous ontologies. The paper discusses how the Convention can be applied to structural and systemic risks driving the over-representation of First Nations and Aboriginal and Torres Strait Islander children in out of home care in Canada and Australia. These two countries are included as First Nations and Aboriginal and Torres Strait Islander peoples in these countries have both had significant impact in advocating for their children despite experiencing similar barriers including contemporary colonialism. The advocacy work of the First Nations Child and Family Caring Society in Canada and the Victorian Aboriginal Child Care Agency in Victoria, Australia are discussed. The paper ends by outlining some of the challenges ahead that include the need to meaningfully recognize Indigenous self-determination and equitable funding and resources to enable the actualization of self-determination. Further research contrasting international human rights instruments with Indigenous ontologies could help inform possible amendments to international human rights treaties and general comments.
Keywords: Indigenous | Child welfare | Structural risks | Equity | Human rights | Ontology
Advance directives: Addressing the obligations of support as part of the right of a person with disabilities to equal recognition before the law?
بخشنامه های پیشبرد: رسیدگی به تعهدات حمایت به عنوان بخشی از حق یک شخص معلول برای شناخت برابر در مقابل قانون؟-2020
Depending upon how they are regulated in domestic law, advance directives (ADs) can enable persons to make decisions that have legal effect in the future as directed in the AD. There is some agreement in the academic literature that ADs are a legitimate way of giving effect to the obligations arising from Article 12 (3) of the United Nations Convention on the Rights of Persons with Disabilities to take appropriate measures to provide access by persons with disabilities (PWDs) to the support they may require in exercising their legal capacity. It is the purpose of this article to question when and how ADs address the obligations of support arising from Article 12 (3), concluding that it cannot and should not be assumed that ADs address those obligations only because they embody and give effect to their makers agency. The article instead highlights the questions that must be posed to obtain legal certainty as to when and how ADs will be a form of Article 12 (3) support. The article also refutes some of the instances in the academic literature when ADs have been presented as support, while offering an account as to how the regulation of ADs should be reconsidered in order to specifically address the obligations arising from Article 12 (3) both when PWDs can and when they cannot communicate their wishes to others.
Keywords: Advance directives | Exercising legal capacity | Human rights | Support | UNCRPD
Scottish mental health and capacity law: The normal, pandemic and ‘new normal’
بهداشت روانی و قانون ظرفیت اسکاتلند: نرمال ، همه گیر و عادی جدید-2020
A states real commitment to its international human rights obligations is never more challenged than when it faces emergency situations. Addressing actual and potential resourcing pressures arising from the COVID-19 pandemic has resulted in, amongst other things, modifications to Scottish mental health and capacity law and the issuing of new guidance relating to associated practice. Whether these emergency or ordinary measures are invoked during the crisis there are potential implications for the rights of persons with mental illness, learning disability and dementia notably those relating to individual autonomy and dignity. This article will consider areas of particular concern but how strict adherence to the legal, ethical and human rights framework in Scotland will help to reduce the risk of adverse consequences.
Keywords: COVID-19 | Scotland | Mental health and capacity law | Emergency measures | Human rights
Mental health and capacity laws in Northern Ireland and the COVID-19 pandemic: Examining powers, procedures and protections under emergency legislation
قوانین بهداشت و ظرفیت های روانی در ایرلند شمالی و بیماری همه گیر COVID-19: بررسی قدرت ، رویه ها و حمایت ها تحت قانون اضطراری-2020
This article examines the changes made to mental health and capacity laws in Northern Ireland through temporary emergency legislation, known as the Coronavirus Act 2020. The purpose of the legislation was to respond to the emergency situation created by the COVID-19 pandemic, in particular the increase pressure placed on health services in the United Kingdom. An overview is provided of the governments rationale for the changes to Northern Ireland mental health and capacity laws, as well as exploring how they are likely to be operationalised in practice. Consideration is also given as to how such changes may impact upon existing human rights protections for persons assessed as lacking mental capacity. It is argued that it is important that regular parliamentary oversight is maintained in relation to the potential impact and consequences of such changes during the period they are in force. This should be done in order to assess whether they remain a necessary, proportionate and least restrictive response to the challenges faced in managing mental health and capacity issues in Northern Ireland during this public health emergency.
Keywords: Mental capacity law | Mental health law | Human rights | Northern Ireland | COVID-19 | Coronavirus Act 2020 | Emergency legislation
Use of a big data analysis technique for extracting HRA data from event investigation reports based on the Safety-II concept
استفاده از روش تجزیه و تحلیل داده های بزرگ برای استخراج داده های مجموعه فعالان حقوق بشر از رویداد گزارش تحقیقات بر اساس مفهوم ایمنی-II-2020
The safe operation of complex socio-technical systems including NPPs (Nuclear Power Plants) is a determinant for ensuring their sustainability. From this concern, it should be emphasized that a large portion of safety significant events were directly and/or indirectly caused by human errors. This means that the role of an HRA (Human Reliability Analysis) is critical because one of its applications is to systematically distinguish error-prone tasks triggering safety significant events. To this end, it is very important for HRA practitioners to access diverse HRA data which are helpful for understanding how and why human errors have occurred. In this study, a novel approach is suggested based on the Safety-II concept, which allows us to collect HRA data by considering failure and success cases in parallel. In addition, since huge amount of information can be gathered if the failure and success cases are simultaneously involved, a big data analysis technique called the CART (Classification And Regression Tree) is applied to deal with this problem. As a result, it seems that the novel approach proposed by combining the Safety-II concept with the CART technique is useful because HRA practitioners are able to get HRA data with respect to diverse task contexts.
Keywords: Human reliability analysis | Nuclear power plant | Safety-II | Classification and regression tree | Event investigation report
Decriminalization of abortion : A human rights imperative
جرم زدایی از سقط جنین: یک ضرورت حقوق بشر -2020
This chapter reviews the evolving consensus in international human rights law, first supporting the liberalization of criminal abortion laws to improve access to care and now supporting their repeal or decriminalization as a human rights imperative to protect the health, equality, and dignity of people. This consensus is based on human rights standards or the authoritative interpretations of U.N. and regional human rights treaties in general comments and recommendations, individual communications and inquiry reports of treaty monitoring bodies, and in the thematic reports of special rapporteurs and working groups of the U.N. and regional human rights systems. This chapter explores the reach and influence of human rights standards, especially how high courts in many countries reference these standards to hold governments accountable for the reform and repeal of criminal abortion laws.
Keywords: Abortion | Penalization | Criminalization | Decriminalization | Proportionality | Human rights
Assessing the Brazilian federal fisheries law and policy in light of the Voluntary Guidelines for Securing Sustainable Small-scale fisheries
ارزیابی قانون و سیاست شیلات فدرال برزیل با توجه به رهنمودهای داوطلبانه برای تأمین شیلات پایدار در مقیاس کوچک-2020
The Voluntary Guidelines for Securing Sustainable Small-scale Fisheries (SSF Guidelines) endorsed in June 2014 by the member States of the Food and Agriculture Organization of the United Nations (FAO) was a landmark for the recognition, promotion and protection of the subsistence and artisanal small-scale fisheries (SSF) sector in the world. This instrument is part of contemporary International Fisheries Law, integrating management and development of fisheries with a range of other relevant matters such as human rights, gender and climate change, following a human rights-based approach (HRBA) and taking into account the ecosystem approach to fisheries (EAF). In this context and with a view to contribute to the realization of the Sustainable Development Goals (SDGs), this article provides an analysis of the SSF Guidelines and informs on how its’ implementation can be supported by the Brazilian Federal Law No. 11,959/2009, which provides for the National Policy for the Sustainable Development of Aquaculture and Fisheries in Brazil. It is seen that certain issues of the SSF Guidelines are better addressed in other federal legal instruments, which should be read, interpreted and applied in combination with that legislation. This analysis aimed at assisting legal practitioners and policy-makers in the implementation of the SSF Guidelines in Brazil.
Keywords: International fisheries law | Small-scale fisheries | Human rights-based approach | Ecosystem approach to fisheries | Brazilian fisheries law and policy
Surveying the Geneva impasse: Coercive care and human rights
بررسی بن بست ژنو: حقوق مراقبت اجباری و انسانی-2019
The United Nations human rights system has in recent years been divided on the question as to whether coercive care interventions, including coercive psychiatric care, can ever be justified under UN human rights standards. Some within the UN human rights community hold that coercive care can comply with human rights standards, provided that the coercive intervention is a necessary and proportionate means to achieve certain approved aims, and that appropriate legal safeguards are in place. Others have held that coercive care is never justified. Disagreement over this issue has produced an impasse in the UN human rights system. We survey the impasse with particular attention to the legal arguments that inform the divergent positions. In doing so we introduce a distinction among a variety of different ‘abolitionist’ positions regarding coercive care, and draw a distinction between ‘non-consensual’ and ‘coercive’ treatment. We conclude with three proposals for moving beyond the current impasse.
Keywords: Human rights | mental health | consent | psychiatric coercion | psychiatric detention | Coercive treatment | United nations human rights committee | United nations convention on the rights of | persons with disabilities | Non-consensual treatment | Involuntary treatment
Fisheries crime, human rights and small-scale fisheries in South Africa: A case of bigger fish to fry
جرم ماهیگیری ، حقوق بشر و ماهیگیری در مقیاس کوچک در آفریقای جنوبی: مورد ماهی بزرگتر برای سرخ کردن-2019
Marine fisheries plays an important role in ensuring food security and providing livelihoods in South Africa, as in many other developing coastal States. Transnational fisheries crime seriously undermines these goals. Drawing on empirical research this contribution highlights the complexity of law enforcement at the interface between low-level poaching and organised crime in the small-scale fisheries sector with reference to a South African case study. Specifically, this article examines the relationship between a fisheries-crime law enforcement approach and the envisaged management approach of the South African Small-Scale Fisheries Policy
Keywords: Fisheries crime | South Africa | Small-scale fisheries policy | Human rights
Canada, cannabis and the relationship between UN child rights and drug control treaties
کانادا ، حشیش و رابطه بین حقوق کودک سازمان ملل و معاهدات کنترل مواد مخدر-2019
Article 33 of the UN Convention on the Rights of the Child requires States to take appropriate measures to protect children from illicit drugs ‘as defined in the relevant international treaties’. Those treaties are the UN drugs conventions. Following cannabis legalisation, then, can Canada remain in compliance with the CRC while breaching treaties to which Article 33 expressly refers? This article investigates this question with reference to the drafting of the CRC and the drugs conventions, how the relationship between the two systems has been approached, and the practice of the UN Committee on the Rights of the Child from 1993-2015. While the CRC could offer an alternative framework through which to critically assess drug laws and policies, by and large it has operated so as to reinforce the drug control system. An interpretation of Article 33 in the light of Canadas cannabis reforms is proposed. Based on the text of the provision, the pacta tertiis rule, and the object and purpose of the provision, it decouples the CRC from the normative requirements of the drugs conventions.
Keywords: Single convention | Convention on the rights of the child | International law | Cannabis | Human rights