Laws | September 2016 - Browse Articles

270 KiB

Open AccessArticle

The Discussions around Precision Genetic Engineering: Role of and Impact on Disabled People

by Gregor Wolbring and Lucy Diep

Laws 2016, 5(3), 37; https://doi.org/10.3390/laws5030037 - 9 Sep 2016

Cited by 11 | Viewed by 14710

Genetic researchers are advancing in their abilities to extract precise genetic information from biological and human entities bringing genetic research steps closer to accurately modifying genes of biological entities, including that of humans. In this analytical essay, we focus on the discussions about [...] Read more.

Genetic researchers are advancing in their abilities to extract precise genetic information from biological and human entities bringing genetic research steps closer to accurately modifying genes of biological entities, including that of humans. In this analytical essay, we focus on the discussions about precision genetic intervention that have taken place since March 2015 as they pertain to disabled people. We focus on two areas; one being the role of disabled people in the recent gene editing discussions and the second being the utility of existing legal instruments. Within our first focus we address the following questions: (a) What is the visibility of disabled people in the gene-editing discussions that have taken place since March 2015? (b) What has been the impact of those discussions on disabled people? (c) Were social problems which disabled people face taken into account in those discussions; (d) How does the reality of engagement with disabled people in these discussions fit with science, technology and innovation governance discourses that ask for more stakeholder, bottom up and anticipatory involvement? Within our second focus we address the following questions: (a) What is the utility of the United Nations Convention on the Right of Persons with Disabilities (UNCRPD); and (b) What is the utility of existing legal instruments covering genetic interventions: for preventing negative social consequences of genetic engineering developments for disabled people. We argue that (a) the genetic engineering debates since March 2015 have portrayed disabled people dominantly through a medical lens; (b) that the governance of science, technology and innovation of genetic engineering including anticipatory governance and responsible innovation discourses has not yet engaged with the social impact of gene editing on disabled people; (c) that few scholars that focus on the social situation of disabled people are visible in the governance discussions of gene editing; and (d) that the utility of the UNCRPD and the investigated genetic-related legal instruments and international agreements to protect disabled people from negative consequences coming out of the gene editing discussions is unclear at the least. Full article

(This article belongs to the Special Issue Precision Medicine, Law & Disability)

263 KiB

Open AccessArticle

Precision Medicine and Advancing Genetic Technologies—Disability and Human Rights Perspectives

by Aisling De Paor and Peter Blanck

Laws 2016, 5(3), 36; https://doi.org/10.3390/laws5030036 - 30 Aug 2016

Cited by 9 | Viewed by 11155

Abstract

Scientific and technological developments are propelling genetics and genetic technologies into the public sphere. Scientific and technological innovation is becoming more refined, resulting in an increase in the availability and use of genetic testing, and other cutting edge genetic technologies, including gene editing. [...] Read more.

Scientific and technological developments are propelling genetics and genetic technologies into the public sphere. Scientific and technological innovation is becoming more refined, resulting in an increase in the availability and use of genetic testing, and other cutting edge genetic technologies, including gene editing. These genetic advances not only signal a growing trend towards precision medicine, but also provoke consideration of the protection of genetic information as an emerging human rights concern. Particular ethical and legal issues arise from a disability perspective, including the potential for discrimination and privacy violations. In consideration of the intersection of genetics and disability, this article highlights the significant concerns raised as genetic science and technology advances, and the consequences for disability rights, particularly the core concepts of non-discrimination, and respect for diversity and difference. On examining international human rights perspectives, it looks particularly at the UN Convention on the Rights of Persons with Disabilities and how it may be used to guide best practice in this area. With an acknowledgement of historical abuses of genetic science, this article highlights the need to maintain caution as to the potential consequences of advancing genetic technologies on persons with disabilities and indeed on society as a whole. Full article

(This article belongs to the Special Issue Precision Medicine, Law & Disability)

262 KiB

Open AccessFeature PaperArticle

Disability in a Human Rights Context

by Theresia Degener

Laws 2016, 5(3), 35; https://doi.org/10.3390/laws5030035 - 25 Aug 2016

Cited by 126 | Viewed by 44912

Abstract

The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the [...] Read more.

The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality. Full article

(This article belongs to the Collection Disability Human Rights Law)

216 KiB

Open AccessArticle

The Cosmopolitan Future: A Feminist Approach

by Sylvie Fogiel-Bijaoui

Laws 2016, 5(3), 34; https://doi.org/10.3390/laws5030034 - 19 Aug 2016

Cited by 4 | Viewed by 8075

Abstract

This study questions the “clash of civilizations” thesis. Referring to the cosmopolitanization process as defined by Beck and Sznaider (2010), I analyze the cosmopolitanization of feminism, that is, the gradual recognition of “the others’ others”, the women, through the evolution of their political [...] Read more.

This study questions the “clash of civilizations” thesis. Referring to the cosmopolitanization process as defined by Beck and Sznaider (2010), I analyze the cosmopolitanization of feminism, that is, the gradual recognition of “the others’ others”, the women, through the evolution of their political rights—the right to elect and be elected—at a global level. In this context, the descriptive representation of women, their substantive representation, and their voices within civil society in the North and the South highlight the fact that feminism is undergoing a process of cosmopolitanization, albeit in a slow and sporadic way. I present this argument from a postcolonial feminist perspective and base my research on NGOs’ data and on data provided by the Inter-Parliamentary Union and UN-Women. First, I analyze the cosmpolitanization process as applied to feminism. Then, following Beck and Sznaider (2010), I describe how this process is articulated ‘from above’ (top-down cosmopolitanization), referring to electoral data from around the world and to international law. Further, I relate to the cosmopolitanization of feminism ‘from below’, referring to feminist theories, cyberfeminism and the global civil/feminist society. In conclusion, I discuss the common future of feminism and cosmopolitanism. Full article

(This article belongs to the Special Issue Public Law - Engendering Equality)

197 KiB

Open AccessCase Report

Lux In Arcana: Decoding the Right to Be Forgotten in Digital Archives

by Patricia Sanchez Abril and Eugenio Pizarro Moreno

Laws 2016, 5(3), 33; https://doi.org/10.3390/laws5030033 - 12 Aug 2016

Viewed by 4670

Abstract

On 13 May 2014, the European Court of Justice ruled that search engines such as Google had a duty to respect EU citizens’ right to be forgotten. That is, the search engines—deemed “controllers” of information under the Directive—were obligated in some circumstances to [...] Read more.

On 13 May 2014, the European Court of Justice ruled that search engines such as Google had a duty to respect EU citizens’ right to be forgotten. That is, the search engines—deemed “controllers” of information under the Directive—were obligated in some circumstances to remove or de-list links from search results that pertain to information that infringes on an individual’s rights under the Directive. In the fall of 2015, the Spanish Supreme Court found itself obligated to determine the application of the digital right to be forgotten in a different context: This time in a digital newspaper archive. However, since the right to be forgotten is purely judicially-created and not yet memorialized in a regulation (other than through judicial interpretations of the European Directive 1995/46/EC of the European Parliament and Council of 24 October on the protection of individuals with regard to the processing of personal data and on the free movement of such data), it is therefore appropriate to analyze Spain’s recent Supreme Court ruling as an indicator of the future of the right. What does this decision mean for the future of the right to be forgotten? Full article

(This article belongs to the Special Issue Cyberlaw and Information Policy)

201 KiB

Open AccessArticle

Protection Orders for Battered Women in Israel

by Dalit Yassour-Borochowitz

Laws 2016, 5(3), 32; https://doi.org/10.3390/laws5030032 - 12 Aug 2016

Cited by 2 | Viewed by 4781

Abstract

The aim of the present study is to describe and re-consider the findings obtained from analysis of 260 protection orders that were granted in cases of violence by men against their partners. The Prevention of Domestic Violence Law was enacted in Israel in [...] Read more.

The aim of the present study is to describe and re-consider the findings obtained from analysis of 260 protection orders that were granted in cases of violence by men against their partners. The Prevention of Domestic Violence Law was enacted in Israel in 1991. The data collection for the study took place 10 years later, after the 1996 amendment was enacted. In this article I revisit the data, the only empirical data on protection orders in Israel, and examine both the process of obtaining protection orders and several attendant issues that are relevant to the procedure, such as the remedies the law offers and the use (or lack of it) judges make of them. The study compares the first ex parte hearings and the second hearings, and the discussion and summary sections provide an insight into the problems emerging from the description of the situation in Israel in light of the current knowledge existing in the world today. Full article

(This article belongs to the Special Issue Domestic Violence and Family Law)

1934 KiB

Open AccessArticle

Subverting Justice: Socio-Legal Determinants of Impunity for Violence against Women in Guatemala

by Cecilia Menjívar and Shannon Drysdale Walsh

Laws 2016, 5(3), 31; https://doi.org/10.3390/laws5030031 - 11 Jul 2016

Cited by 20 | Viewed by 14818

Abstract

High levels of violence against women and impunity in Guatemala have reached crisis proportions and have received increased international attention in recent years. The phenomenon of feminicide (e.g., killings of women in the context of state impunity), is widespread in Latin America and [...] Read more.

High levels of violence against women and impunity in Guatemala have reached crisis proportions and have received increased international attention in recent years. The phenomenon of feminicide (e.g., killings of women in the context of state impunity), is widespread in Latin America and particularly acute in Guatemala. Many (if not the majority) are rooted in violence that becomes concentrated in the family. In this paper, we propose that both the structure and application of the laws in Guatemala contribute to widespread impunity. Police and judges use laws other than those created to address violence against women in order to justify lack of enforcement. For example, judges resist issuing restraining orders, and police refuse to apply them because this can violate perpetrators’ property rights. Judges also refuse to apply domestic violence laws because this violates the principle of equality under the law. Women refuse to use the legal system to seek justice because alimony laws will not be enforced and women are economically dependent. The discriminatory fashion in which these laws are applied leads to widespread impunity. Even though laws on the books could be applied otherwise, those who implement them privilege laws that conflict with violence against women laws. While much scholarship focuses on individual-level motives for violence, we instead analyze the socio-legal environment and existing legal codes that enable continued failure to respond adequately to violence against women. The legal framework and the legal code itself are deeply shaped by the context in which they are written—the structural, gender, symbolic, everyday and long arm of political violence that permeate all aspects of life in Guatemala and exacerbate women’s vulnerability, especially the poor. We argue that this broader legal context endangers the lives of women in Guatemala. We also extend the socio-legal scholarship to highlight failures for victim’s families and the disempowerment of women as they enter relationships. Full article

(This article belongs to the Special Issue Domestic Violence and Family Law)

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247 KiB

Open AccessFeature PaperArticle

Using Risk to Assess the Legal Violence of Mandatory Detention

by Robert Koulish

Laws 2016, 5(3), 30; https://doi.org/10.3390/laws5030030 - 5 Jul 2016

Cited by 3 | Viewed by 7247

Abstract

Immigration mandatory detention is a particularly harsh example of the structural violence embedded in immigration enforcement. It deprives liberty without bond for immigrants with prior crimes, and assigns many individuals to the harsh conditions associated with unnecessary and even wrongful detention. Mandatory detention [...] Read more.

Immigration mandatory detention is a particularly harsh example of the structural violence embedded in immigration enforcement. It deprives liberty without bond for immigrants with prior crimes, and assigns many individuals to the harsh conditions associated with unnecessary and even wrongful detention. Mandatory detention has been justified on the grounds that mandatory detainees are a danger to public safety. This article puts to the test this presumption of dangerousness among mandatory detainees, and finds, to the contrary, that immigrants with prior charges or convictions are no more dangerous than any other category of individuals in Immigration and Customs Enforcement (ICE) custody. Using the risk classification assessment (RCA) tool, which the author is the first to obtain through the Freedom of Information Act, the article contributes to the growing criticism of mandatory detention, providing evidence that many of those in mandatory detention should probably have never been detained. Full article

(This article belongs to the Special Issue Immigration Law and Criminal Justice)

214 KiB

Open AccessArticle

Strengthening the Voice of Persons with Mental Health Problems in Legal Capacity Proceedings

by Marie Fallon-Kund and Jerome Bickenbach

Laws 2016, 5(3), 29; https://doi.org/10.3390/laws5030029 - 29 Jun 2016

Cited by 2 | Viewed by 5792

Abstract

Despite the standards set out by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), states are reluctant to put an end to substitute decision-making regimes all at once. Persons with mental health problems are particularly affected by such regimes [...] Read more.

Despite the standards set out by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), states are reluctant to put an end to substitute decision-making regimes all at once. Persons with mental health problems are particularly affected by such regimes that are instituted by independent authorities through legal capacity proceedings. In order to allow the person to express their will and preferences throughout the proceedings, the right to be heard is of primary importance for the person concerned. The objective of this paper is to review the essential support mechanisms as well as procedural accommodations for the implementation of an equal and effective right to be heard for persons with mental health problems. Fulfilling the right to be heard in legal capacity proceedings is a step towards more individualized regimes that promote the autonomy of the person. Full article

(This article belongs to the Collection Disability Human Rights Law)

200 KiB

Open AccessArticle

Governance of the Internet of Things—From Infancy to First Attempts of Implementation?

by Rolf H. Weber

Laws 2016, 5(3), 28; https://doi.org/10.3390/laws5030028 - 24 Jun 2016

Cited by 6 | Viewed by 7909

Abstract

In the course of the Internet’s growing importance within the last decade, the Internet of Things (IoT) has also been a subject of much debate. Being defined by the International Telecommunication Union (ITU) as the development of item identifications, sensor technologies and the [...] Read more.

In the course of the Internet’s growing importance within the last decade, the Internet of Things (IoT) has also been a subject of much debate. Being defined by the International Telecommunication Union (ITU) as the development of item identifications, sensor technologies and the ability to interact with the environment, the term Internet of Things, in more simple words, stands for a technology that is based on the connection of everyday objects to the Internet which exchange, aggregate and process information regarding their physical environment for providing value-added services to end-users. Notwithstanding the extensive research activities having been conducted in the recent past and the broad consensus as to the necessity of a basic normative framework for IoT applications, a final multilateral agreement is still missing. In this respect, an analysis of possible approaches solving the present challenges seems to be worthwhile to conduct. Full article

(This article belongs to the Special Issue Cyberlaw and Information Policy)

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