The Constitution of the World Health Organization affirms that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being.” The Universal Declaration of Human Rights lays the foundations for the international framework for the right to health. This human right is now codified in numerous national constitutions, as well as legally binding international human rights treaties, such as the International Covenant on Economic, Social and (...) Cultural Rights.Although medical care and access to medicines are vital features of the right to health, almost two billion people lack access to essential medicines, leading to immense avoidable suffering. Improving access to essential medicines could save 10 million lives each year, four million of them in Africa and South-East Asia alone. Gross inequity is a shocking feature of the world pharmaceutical situation. (shrink)

The study of illiberal constitutions has recently generated enormous scholarly interests. Few, however, have focused on whether democracies may still embrace constitutionalism mixed with illiberal elements. This article explores mixed constitutions of South Korea and Taiwan, the two democracies with vibrant civil societies in East Asia. Three distinctive features in both constitutions have demonstrated illiberal elements, including duty clauses imposed upon citizens, directives requiring the State to enact laws to fulfill the goals of governance, and constitutional cultures that exhibit (...) high deference to political elites based on the Confucian tradition. This article further examines the impacts of such mixed constitutions on three challenging issues: managing pandemic crisis, applying artificial intelligence, and combating fake news. This article finds mixed features of illiberal and democratic constitutions in the two countries by giving their governments more space in managing urgent crises, showing higher deference to experts who are generally trusted by the public, and making compromises to individual rights for greater public good. However, this does not imply that the government is not made democratically accountable, or rights and freedoms are not asserted or valued by individuals. To the contrary, nongovernmental organizations and courts in the two countries continue to act as a counterbalancing force, challenging the government’s policies and decisions if not reasonably balanced, weakening the tendency of power concentration that has been seen in other countries where democratic backsliding or authoritarian governance is gradually revived. (shrink)

The adoption of the French Duty of Vigilance law has been celebrated as a milestone for advancing the transnational business and human rights regime. The law can contribute to harden corporate accountability by challenging the “separation principle” of transnational companies and by obligating companies to report on their duty of vigilance. However, the question of whether the law actually contributes to human rights and environmental protection along global supply chains requires empirically grounded research that connects processes (...) in home and host state countries. This paper contributes to such a new research agenda by linking political ecology literature and empirical insights from the Global South to research on due diligence regulations. With reference to field research data on contestations between the oil and gas company Total E&P and indigenous communities in Bolivia, I argue that the burden of proof and contestations over valid knowledge represent major obstacles when trying to establish legal liability. (shrink)

Despite growing advances in medical technologies, health status inequalities continue to increase across the globe. Developing countries have been faced with declining expenditures in health and social services, increasing burdens posed by both communicable and non-communicable diseases, and economic systems poorly geared to fostering sustainable development for the poorest and most marginalized. Under such circumstances, the challenges facing health practitioners in countries in transition are complex and diverse, and require the balancing of many conflicting imperatives. This is particularly so in (...) relation to the development of public health policy, where equity, redress of past inequalities, and the god of social justice may seemingly be pitted against macroeconomic adjustments required for national economic development in an increasingly globalized economic order.For example, pressures to deregulate as part of a market-oriented development philosophy will increase the risks from occupational hazards in populations desperate for paid employment. (shrink)

Despite growing advances in medical technologies, health status inequalities continue to increase across the globe. Developing countries have been faced with declining expenditures in health and social services, increasing burdens posed by both communicable and non-communicable diseases, and economic systems poorly geared to fostering sustainable development for the poorest and most marginalized. Under such circumstances, the challenges facing health practitioners in countries in transition are complex and diverse, and require the balancing of many conflicting imperatives. This is particularly so in (...) relation to the development of public health policy, where equity, redress of past inequalities, and the god of social justice may seemingly be pitted against macroeconomic adjustments required for national economic development in an increasingly globalized economic order.For example, pressures to deregulate as part of a market-oriented development philosophy will increase the risks from occupational hazards in populations desperate for paid employment. (shrink)

An innovative book that provides fresh insights into the neglected field of remedies in both international and domestic human rights law. Providing an overarching two-track theory, it combines remedies to compensate and prevent irreparable harm to litigants with a more dialogic approach to systemic remedies. It breaks new ground by demonstrating how proportionality principles can improve remedial decision-making and avoid reliance on either strong discretion or inflexible rules. It draws on the latest jurisprudence from the European and Inter-American (...) Courts of Human Rights and domestic courts in Australia, Canada, India, New Zealand, Hong Kong, South Africa, the United Kingdom and the United States. Separate chapters are devoted to interim remedies, remedies for laws that violate human rights, damages, remedies in the criminal process, declarations and injunctions in institutional cases, remedies for violations of social and economic rights and remedies for violations of Indigenous rights. (shrink)

In many countries and resource sectors, the state is devolving responsibility for natural resource management responsibility to ``communities'' or local user groups. However, both policymakers and researchers in this area have tended to ignore the implications of gender and other forms of intra-community power differences for the effectiveness and equity of natural resource management. In the irrigation sector, despite the rhetoric on women's participation, a review of evidence from South Asia shows that organizations often exclude women through formal or (...) informal membership rules and practices. Women may have other ways to obtain irrigation services, but even if they are effective, these other informal ways of obtaining irrigation services are typically less secure. As resource management – and rights to resources – are transferred from the state to local organizations, ensuring women's participation is essential for gender equity in control over resources. Greater involvement of women can also strengthen the effectiveness of local organizations by improving women's compliance with rules and maintenance contributions. Further detailed and comparative research is required to identify the major factors that affect women's participation and control over resources, if devolution policies are to be both equitable and sustainable. (shrink)

The people of Myanmar were struck by three major human rights disasters during the country's period of democratization from 2003 to 2012: the 2007 Saffron Revolution, the aftermath of Cyclone Nargis in 2008, and the 2012 Rakhine riots, which would evolve into the ongoing Rohingya crisis. These events saw Myanmar's government categorically labeled as an offender of human rights, and three powerful Southeast Asian member states-Indonesia, Thailand, and Malaysia-responded to the violations in very different ways. In (...) each case, their responses to the crises were explicitly shaped by norm conflict, which may be understood as a tension between international and domestic norms. Their reactions were compelled by a need to address conflicting domestic and international expectations for norm compliance regarding human rights protection and non-interference in internal affairs. In Norms in Conflict: Southeast Asia's Response to Human Rights Violations in Myanmar, Anchalee Rüland makes sense of state action that occurs when a governing body is faced with a circumstance that is at once in line with and contrary to its own governing policies. She defines five different types of response strategies to situations of norm conflict and examines the enabling factors that lead to each strategy. Domestic norms are known to evolve as a country's values change over time yet Rüland argues that the old and new norms may also coexist; knowledge of the underlying political context is crucial for those seeking a solid understanding of state behavior. Norms in Conflict challenges the conventional understanding of the logic of consequences in determining state behavior, advancing constructivist theory and establishing a provocative new conversation in international relations discourse. (shrink)

The current approaches to equality law in South Africa and Canada place these jurisdictions at the forefront of serious and comprehensive judicial at tempts to give effect to substantive equality. These attempts to overcome formalism are processes, judicially acknowledged as such, and as yet far from complete. At the conceptual center of the development of substantive equality is the legal realization of human dignity: not an abstract, individualistic notion, but a concept about the relation between the individual and (...) state, and individual and group, which is circumscribed by concern, respect and consideration.But substantive equality is not possible only through the case law. The current issues surrounding intersectional discrimination and the contextual appreciation of a claimant’s circumstances are urgent reminders that the methods and remedies afforded by the structure of litigation of equality rights claims simply cannot accommodate many instances which call for relief. The fact that these inadequacies of court enforced claims are beginning to be laid bare by some of the problems being faced by the Courts in equality claims is perhaps not a failing of equality law and the concept of dignity, but its strength. The methodology of human rights litigation in countries like Canada and South Africa supports a dialogue between court and legislature. As substantive equality develops in these jurisdictions, the limits of judicial development will be challenged. That is ultimately to be welcomed, if the legislatures are responsive to the definition of human dignity and substantive equality in development judicially, and respond with efforts to support and promote these developments. (shrink)

Since the proclamation of the Universal Declaration of Human Rights, over 165 countries have incorporated human rights standards into their legal systems: the resulting jurisprudence from diverse cultural traditions creates new dimensions to concepts first articulated in 1948. In this revised second edition, Nihal Jayawickrama draws on extensive sources to encapsulate the judicial interpretation of human rights law in one comprehensive volume. Jayawickrama covers the case law of the superior courts of 103 countries in (...) America, Europe, Africa, Asia, the Caribbean and the Pacific, as well as jurisprudence of human rights monitoring bodies. He analyses the judicial application of human rights law to demonstrate empirically the universality of contemporary human rights norms. This definitive volume is essential for legal practitioners, and government and non-governmental officials, as well as academics and students of both constitutional law and the international law of human rights. (shrink)

There are three major reasons that ideas associated with ubuntu are often deemed to be an inappropriate basis for a public morality. One is that they are too vague, a second is that they fail to acknowledge the value of individual freedom, and a third is that they a fit traditional, small-scale culture more than a modern, industrial society. In this article, I provide a philosophical interpretation of ubuntu that is not vulnerable to these three objections. Specifically, I construct a (...) moral theory grounded on southern African worldviews, one that suggests a promising new conception of human dignity. According to this conception, typical human beings have a dignity in virtue of their capacity for community, understood as the combination of identifying with others and exhibiting solidarity with them, where human rights violations are egregious degradations of this capacity. I argue that this account of human rights violations straightforwardly entails and explains many different elements of South Africa’s Bill of Rights and naturally suggests certain ways of resolving contemporary moral dilemmas in South Africa and elsewhere relating to land reform, political power and deadly force. (shrink)

BackgroundAfrica continues to bear a disproportionate share of the global HIV/AIDS, tuberculosis (TB) and malaria burden. The development and distribution of safe, effective and affordable vaccines is critical to reduce these epidemics. However, conducting HIV/AIDS, TB, and/or malaria vaccine trials simultaneously in developing countries, or in populations affected by all three diseases, is likely to result in numerous ethical challenges.MethodsIn order to explore convergent ethical issues in HIV/AIDS, TB and malaria vaccine trials in Africa, the Ethics, Law and Human (...) Rights Collaborating Centre of the WHO/UNAIDS African AIDS Vaccine Programme hosted a consultation on the Convergent Ethical Issues in HIV/AIDS, TB and Malaria Vaccine Trials in Africa in Durban, South Africa on the 10-11 February 2009.ResultsKey cross cutting ethical issues were prioritized during the consultation as community engagement; ancillary care obligations; care and treatment; informed consent; and resource sharing.ConclusionThe consultation revealed that while there have been few attempts to find convergence on ethical issues between HIV/AIDS, TB and malaria vaccine trial fields to date, there is much common ground and scope for convergence work between stakeholders in the three fields. (shrink)

In October 2005, UNESCO (the United Nations Educational, Scientific and Cultural Organization) adopted the Universal Declaration on Bioethics and Human Rights. This was the culmination of nearly 2 years of deliberations and negotiations. As a non-binding instrument, the declaration must be incorporated by UNESCO’s member states into their national laws, regulations or policies in order to take effect. Based on documentary evidence and data from interviews, this paper compares the declaration’s universal principles with national bioethics guidelines and practice (...) in Kenya and South Africa. It concentrates on areas of particular relevance to developing countries, such as protection of vulnerable persons and social responsibility. The comparison demonstrates the need for universal principles to be contextualised before they can be applied in a meaningful sense at national level. The paper also assesses the ‘added value’ of the declaration in terms of biomedical research ethics, given that there are already well-established international instruments on bioethics, namely the World Medical Association Declaration of Helsinki and the CIOMS (Council for International Organizations of Medical Sciences) guidelines on biomedical research. It may be that the added value lies as much in the follow-up capacity building activities being initiated by UNESCO as in the document itself. (shrink)

In an article previously published in this Journal, Anthony Oyowe critically engages with my attempt to demonstrate how the human rights characteristic of South Africa’s Constitution can be grounded on a certain interpretation of Afro-communitarian values that are often associated with talk of ‘ubuntu’. Drawing on recurrent themes of human dignity and communal relationships in the sub-Saharan tradition, I have advanced a moral-philosophical principle that I argue entails and plausibly explains a wide array of individual (...) class='Hi'>rights to civil liberties, political power, criminal procedures and economic resources. Oyowe’s most important criticism of my theory is in effect that it is caught in a dilemma: either the principle I articulate can account for human rights, in which case it does not count as communitarian, or it does count as the latter, but cannot account for the former. In this article, I reply to Oyowe, contending that he misinterprets key facets of my theory to the point of not yet engaging with its core strategy for deriving human rights from salient elements of ubuntu. I conclude that Oyowe is unjustified in claiming that there are ‘theoretical lapses’ that ‘cast enormous doubts’ on my project of deriving human rights from a basic moral principle with a recognizably sub-Saharan and communitarian pedigree. (shrink)

Reprint of an article first published in the _African Human Rights Law Journal_ (2011).

The development of international human rights norms and law is an often-contentious process. Despite significant gains from recent research on the development and implementation of human rights law, little research has focused on strategies of contestation prior to final outcome documents like resolutions, declarations, or treaties. Amendments to UN Human Rights Council resolutions are a form of contestation, particularly validity contestation that happens prior to the passage of Council resolutions. This paper examines the use (...) of amendments by states using descriptive statistics from Council proceedings from 2006 through 2018 as well as case studies on women’s rights and civil society space to illustrate how states use amendments to frame their positions. Amendments are increasingly being used by states from the Global South to contest the validity of potential human rights norms at the Council. The long-term impacts of the use of amendments are an often overlooked but important part of the Council’s ability to promote and protect rights. (shrink)

Can an African ubuntu moral theory ground individual freedom and human rights? Although variants of ubuntu moral theory answer in the negative, asserting that the duties individuals owe the collective are prior to individual rights (since African thought places more emphasis on the collective), Metz’s recent articulation in this Journal of an African ubuntu moral theory promises to ground the liberal ideal of individual liberty. I pursue three distinct lines of argument in establishing the claim that Metz’s (...) project fails to convince - that individual freedom and rights cannot be successfully grounded in a moral theory that already regards some extrinsic value (that is, communal harmony) as the most fundamental moral value. First, I suggest that Metz’s attempt to ground human rights in his ubuntu moral theory raises the problem of where the fundamental value lies in his theory. That is, in seeking to integrate two potentially-conflicting and non-instrumental values in his theory, Metz substantially modifies his original ubuntu ethical principle in such a way that the communitarian/ubuntu status of the theory is undermined. Second, I argue that, even if Metz’s theory were sufficiently communitarian/ubuntu-like, it could not possibly ground individual freedom as a non-instrumental value. Third, I argue that Metz employs a tendentious reading of the concept of human rights; in particular, that he erroneously construes rights as duties. Since this last argument rests on a subtle distinction between individual rights and duties, I try to suggest how the distinction can be made in spite of the fact that these concepts are strongly related. Although I do not directly address Metz’s treatment of specific human rights issues in South Africa, throughout I contend that these theoretical lapses cast enormous doubts on his overall project. (shrink)

The South African government announced the much-discussed stay-at-home order between March 27 and April 30, 2020, during what was known as lockdown level 5, which meant that citizens were not allowed to leave their homes. The objective of this study is to assess the stay-at-home order against the global principles of the UDBHR. It is deducible that, in reference to the UDBHR, the government possessed the right to curtail individual liberty, thereby not infringing on Article 5 of the UDBHR (...) and therefore, in this context, passes the test of the UDBHR. However, it remains uncertain at present whether the limitation of freedom imposed by the South African stay-at-home order was successful in controlling the spread of COVID-19 and protecting individuals from harm. Initial investigations also indicate that individuals who are particularly vulnerable may not have received equitable treatment in accordance with the principle outlined in Article 10, therefore, it can be cautiously and modestly argued that the stay-at-home order does not withstand scrutiny when assessed against the UDBHR. Given the continued discussion about the efficacy of limiting freedom to control the spread of COVID-19, and the growing conviction that the advancement of justice is being called into question, the notion of least restriction ought to be considered seriously. Ten Have (2022) is correct in asserting that global bioethics should also seriously consider other principles beyond an almost exclusive focus on limiting individual freedom. The preliminary conclusion is that the potential implementation of the stay-at-home order in the future must be seriously reconsidered. (shrink)

This book studies the history of intercultural human rights. It examines the foundational elements of human rights in the East and the West and provides a comparative analysis of the independent streams of thought originating from the two different geographic spaces. It traces the genesis of the idea of human rights back to ancient Indian and Greco-Roman texts, especially concepts such as the Rigvedic universal moral law, the Upanishadic narratives, the Romans' model of governance, (...) the rule of law, and administration of justice. It also looks at Cicero's concept of rights and duties which focuses on quality of compassion and fair play, and Seneca's expositions on mercy, empathy, justice and checks on the arbitrary exercise of power. An important contribution, this book fills a significant gap in the study of human rights. It will be useful for students and researchers of political science, ancient history, religion and civilizations, philosophy, history, human rights, governance, law, sociology, and South Asian studies. The book also caters to general readers interested in the history of human rights. (shrink)

This book addresses two central questions: What does it mean to shift the epistemic centre of human rights thinking and to decolonise global human rights? And, how to study the 'active' conceptual, empirical, epistemic and political life of rights in 'most of the world'? To address these questions, this book introduces and develops the framework of vernacular rights cultures. The study of vernacular rights cultures is an interdisciplinary, conceptual, epistemic, methodological and empirical project. (...) It intervenes in the current impasse of human rights debates to offer a framework through which the complexity and dynamism of rights-based mobilisations might be analytically captured, not simply as those which are mimetic, and engaged in the translation, enactment and localization of 'global human rights', but rather as those which have their specific languages of rights and entitlements grounded in specific political imaginaries, justificatory premises and subjectivities. Through a conceptual and ethnographic tracking of the Urdu/Arabic word haq across subaltern citizen mobilizations in India and Pakistan, the book analyses the deployment of rights in the vernacular in South Asia including the political, epistemic and ethical agency released by this rights politics. By focusing on the claims for rights/haq by marginalised and very poor women including dalit and indigenous women within grassroots mobilisations demanding rights to food, employment, public information/accountability and land rights in rural movements in India and Pakistan, the book documents the specific gendered political imaginaries that inform rights struggles in the subcontinent. (shrink)

The world witnessed a major historical event in 1947 when subcontinent, which was governed as a one unit from Khyber to Burma since almost last one thousand years, partitioned by the ruling British Empire resulting into two states namely India and Pakistan. The major reason behind partition of the subcontinent was the religious and cultural differences between the Hindus and Muslims. This difference made them hostile towards each other and India having superiority in all aspects, compelled Pakistan to become a (...) security state right after its inception. To expand its superiority over the whole region, the Indian nuclear program started in 1944, even before its independence. India conducted first nuclear tests in 1974 and continued expanding its nuclear program. This forced Pakistan to work seriously on its nuclear program with a fast pace. India announced its formal entry to the nuclear weapons club in May 1998 with 5 nuclear tests at Pokhran, Pakistan, having nuclear capability at that time, replied back in merely two weeks with 6 nuclear tests and became the 7th nation in the world and first Islamic country to join the nuclear countries club. The lives of over a billion people are at mercy of the two nuclear powers state heads, especially India having an extremist government poses a serious threat to the peace of subcontinent which needs great attention especially from the global community otherwise a nuclear Armageddon could be expected. (shrink)

Bangladesh emerged as an independent country in the South Asia in 1971 after being separated from Pakistan. In 1971 it was a very poor country. The general people had a hope and dream that the political parties will develop the country and will eradicate poverty gradually, will provide jobs to the 50% unemployed people, will educate the 60% illiterate people; but their holy hope and dream have not been fulfilled due to frequent hostile political culture, beating, killing among the (...) political party members, no patriotism among the political leaders, massive corruption, unnecessary frequent strike, unnecessary opposition to the government policy etc. This paper has narrated the past and current social and political situation in Bangladesh briefly with the help of data collected from newspapers and statements given by intellectuals and political leaders. Descriptive and analytical research methodology has been applied in this paper to narrate the situation. (shrink)

Between 1904 and 1908, German colonialists in German South West Africa (GSWA, known today as Namibia) committed genocide and other international crimes against two indigenous groups, the Herero and the Nama. From the late 1990s, the Herero have sought reparations from the German government and several German corporations for what occurred more than a hundred years ago. This article examines and contextualizes the issues concerning reparations for historical human rights claims. It describes and analyzes the events in (...) GSWA at the time. It further explores whether international humanitarian law and international human rights law today permit reparatations to be obtained. The article therefore examines the origins of international criminal law, as well as international human rights and humanitarian law, to determine whether what occurred then were violations of the law already in force. Finally, the article examines and evaluates the Herero reparations cases, as well as the potential impact of the cases on the wider reparations movement that sees an increasing number of claims for events that occurred during colonial times. (shrink)

The changing situation in South Africa and Eastern Europe prompts Charles Villa-Vicencio to investigate the implications of transforming liberation theology into a theology of reconstruction and nation-building. Such a transformation, he argues, requires theology to become an unambiguously interdisciplinary study. This book explores the encounter between theology, on the one hand, and constitutional writing, law-making, human rights, economics, and the freedom of conscience on the other. Placing his discussion in the context of the South African struggle, (...) the author compares this situation to that in Eastern Europe, and the challenge of what is happening in these situations is identified for contexts where "the empire has not yet crumbled.". (shrink)

This article explores the tensions between geopolitics and human rights under present conditions of world politics. It takes notes of the rise of human rights as a discourse in international law, and draws attention to the use of this discourse by powerful states, especially the United States, to validate non-defensive uses of force. It also notes the role of the media in facilitating the geopolitical agenda associated with exerting pressure on some conditions but exempting other situations (...) as serious or more so . This article also discusses the reliance on the human rights discourse by oppressed groups and by countries in the South, and the emergence of a counter-hegemonic tradition in human rights that challenges geopolitical projects in a variety of settings. The main conclusion is that neither an uncritical endorsement nor a cynical dismissal of human rights is appropriate at this time.Keywords: human rights; geopolitics; hegemony; counter-hegemony; international law. (shrink)

Background. South Africa (SA) currently has a golden opportunity to legislate on human heritable genome editing (HHGE), as the country is revising its assisted reproductive technology regulations. A set of sub-regulations that deals with HHGE, which could seamlessly slot into the current regulations, has already been developed. The principles underlying the proposed set of sub-regulations are as follows: HHGE should be regulated to improve the lives of the people and should not be banned; the well-established standard of safety (...) and efficacy should be used in the regulation of HHGE; quality of life is what matters, and not preserving a ‘normal’ genome; parents’ reproductive autonomy must be respected; and equality of access to approved HHGE technology should be promoted. Objectives. To ascertain whether the proposed set of sub-regulations that deals with HHGE is aligned with public opinion in SA, and SA’s Bill of Rights. Methods. Public opinion in SA is determined with reference to a deliberative public engagement study on HHGE conducted among South Africans, and the relevant rights in the Bill of Rights are interpreted with reference to recent case law. Results. This proposed set of sub-regulations that deals with HHGE is aligned with public opinion in SA, and SA’s Bill of Rights. Conclusion. Despite the legal and ethical complexities of HHGE, the proposed set of sub-regulations provides a targeted and effective legislative approach. They fit seamlessly into the country’s existing health law framework, creating specific legal standards for HHGE that align with both public opinion and the country’s Bill of Rights. (shrink)

Increasingly, the world seems to shrink due to our ever-expanding technological and communication capacities. Correspondingly, our awareness of other cultures increases. This is especially true in the field of bioethics because the technological progress of medicine throughout the world is causing dramatic and challenging intersections with traditionally held values. Think of the use of pregnancy monitoring technologies like ultrasound to abort fetuses of the “wrong” sex in India, the sale of human organs in and between countries, or the disjunction (...) between the haves and the have-nots in South America when it comes to bone marrow transplants, while thousands of other children die for want of fundamental goods and services like clean water, basic inoculations, and food itself. (shrink)

Providing a novel multi-disciplinary theorization of memory politics, this insightful Handbook brings varied literatures into a focused dialogue on the ways in which the past is remembered and how these influence transnational, interstate, and global politics in the present. With case studies from Africa, East and Southeast Asia, Europe, South America, and the United States, the Handbook focuses on the political features of historical memory in international relations. Chapters examine key concepts of memory politics, including accountability, commemoration and memorialization, (...) the Europeanization of memory, and the politics of trauma and victimhood, as well as analyzing different sites of memory, from the human body and memorial sites to media, film, and television. It also answers essential questions such as who and what determines the relevance of the past in the present; how does memory become a political question; and what are the political effects and ethical implications of its mobilization? Exploring the links between the politics of memory, international ethics, law, and diplomacy, this stimulating Handbook will be essential reading for students and scholars of politics and international relations, cultural studies, history, and transitional justice. Its discussion of notable agents and practices of memory politics will also be beneficial for practitioners working in human rights, politics, and public policy. (shrink)

Increasingly, the world seems to shrink due to our ever-expanding technological and communication capacities. Correspondingly, our awareness of other cultures increases. This is especially true in the field of bioethics because the technological progress of medicine throughout the world is causing dramatic and challenging intersections with traditionally held values. Think of the use of pregnancy monitoring technologies like ultrasound to abort fetuses of the “wrong” sex in India, the sale of human organs in and between countries, or the disjunction (...) between the haves and the have-nots in South America when it comes to bone marrow transplants, while thousands of other children die for want of fundamental goods and services like clean water, basic inoculations, and food itself. (shrink)

To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind (...) the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law. (shrink)

In the wake of the advent of genome editing technology CRISPR-Cas9 (clustered regularly interspaced palindromic repeat (CRISPR)-associated protein 9), there has been a global debate around the implications of manipulating the human genome. While CRISPR-based germline gene editing is new, the debate about the ethics of gene editing is not – for several decades now, scholars have debated the ethics of making heritable changes to the human genome. The arguments that have been raised both for and against the (...) use of genetic technologies in human reproduction reiterate much of the arguments made in the pre-CRISPR debate. As such, it is instructive for South Africa to reflect on these arguments now, in considering our position on the regulation of the use of this novel biotechnology. There are two dominant schools of thought in this area, bioliberalism and bioconservatism. Bioconservatives raise concerns about the risks of genetic manipulation, and argue that it ought to be limited or prohibited to avert these risks to human health and human nature. Bioliberal scholars are more open to the prospect of genetic manipulation, because of its potential utility. In this article, I conclude that in liberal democracies such as our own, bioliberal arguments ought to be seriously considered when formulating policy on human genome editing because of the extent to which they resonate with our Constitutional values and human rights. I further suggest that there is a need for an enquiry into the relevance of African perspectives on the ethical questions that arise concerning germline genome editing. (shrink)

The technological solutions adopted during the current pandemic will have a lasting impact on our societies. Currently, COVID-19 health status certificates are being deployed around the world, including in Europe, the United States and China. When combined with identity verification, these digital and paper-based certificates allow individuals to prove their health status by showing recent COVID-19 tests results, full vaccination records or evidence of recovery from COVID-19. Most countries in the Global South, where vaccination rates are low, have not (...) yet fully implemented such certificates, although several initiatives are currently underway. That is, for instance, the case in the African Union. Yet, it is not sufficient to develop technical solutions for the verification of COVID-19 health status. Because technologies do not evolve in a legal vacuum, the existing laws and regulations must be respected. The risks of implementing such technologies must be anticipated and mitigated as much as possible before any large-scale deployment. Risk mitigation should also underpin strategies throughout the deployment of these certificates. This article evaluates the key legal implications of COVID-19 health status certificates for data privacy and human rights. In doing so, it contributes to the current debates, thus informing policymakers in this area of vital national and international interest. (shrink)

ExcerptMany people assume that the Universal Declaration of Human Rights of 1948 was an exclusively or primarily Western project, imposed on the rest of the world by the European and American powers that emerged victorious from World War II. Harvard Law professor Mary Ann Glendon’s 2001 book, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, suggests otherwise. It was not the great powers but small powers that pushed hardest for a declaration (...) of rights. And it was often great powers—and one must acknowledge, great powers dominated by people of European ancestry—that did not like the idea of being pushed around by politically and economically weaker inhabitants of the Global South, who were just beginning to emerge from centuries of Western colonialism and other forms of oppression.1. (shrink)

Health research for progress in the control and conquest of disease afflicting man is unquestionable. Concerns arise when motives other than the advancement of scientific knowledge and benefit for individuals and society are the driving force behind clinical trials. These conflicts of interests become even more pronounced when dealing with populations rendered vulnerable by virtue of poverty and ignorance. South Asia with its teeming millions represents one such region. This essay examines the reasons that make this population vulnerable to (...) exploitation. Informed consent in the process of research is an area where such conflicts are prone to arise. In order to ensure that conflicting interests of researchers and funding agencies are kept in check, the processes of informed consent and ethical review of research need to be strengthened. Suggestions are put forward to modify the consent process to match the needs of South Asia and to strengthen the ethical review process for safeguarding the rights of the study subjects. But perhaps the most important safeguard against exploitation is the virtuous researcher himself with noble intentions. (shrink)

Theories of citizenship have largely focused on the provision of rights by law and policy measures, as if rights are universally beneficial and cost-free and the invitations of rights will be accepted once offered. I challenge this assumption and highlight the need to empirically address how people negotiate with the benefit and cost of claiming rights. Based on ethnographic research in South Korea, this article delves into the everyday lives of migrant women in two feminized (...) sectors of migration—cross-border marriage and sexual commerce—to situate the act of claiming rights in relation to the gendered pursuit of moral respect. I show that feminist groups in South Korea relied on the discourse of victimization and trafficking in pressuring the South Korean state to account for the human rights of migrant wives and migrant hostesses, while reinforcing the moral hierarchy that renders problematic migrant women’s work and intimate relationships. I argue that the distinctive material and moral costs that accompanied human rights–based provisions compelled migrant wives and hostesses to pursue divergent paths in seeking alternate bases to citizenship that would support their inclusion as moral equals. (shrink)

Despite recurring efforts, a gap exists across a variety of contexts between the protection of patients' safety in theory and in practice. This timely Research Handbook highlights these critical issues and suggests both legal and policy changes are necessary to better protect patients' safety. Multidisciplinary in nature, this Research Handbook features contributions from eminent academics, policy makers and medical practitioners from the Global North and South, discussing the essential facets concerning patient safety and the law. It highlights how the (...) role of legislation and case law has the potential to influence, both positively and negatively, medical practice and the quality of care. Chapters explore patient safety and the global health agenda; physiotherapy; 'non-therapeutic' clinical research with children; patient safety awareness in healthcare education; and the increasing use of robotics and artificial intelligence in healthcare. Outlining a wide range of international perspectives on patient safety and the law, this Research Handbook will appeal to academics and researchers specialising in health and medical law, human rights and healthcare regulation. It will also serve as a valuable resource for legal and medical practitioners alike, as well as clinicians and professionals working in healthcare governance. (shrink)

I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon newly according legal rights to animals. Compensatory injustice would likely (...) result from such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

In this chapter, a reprinted article from Southern African Public Law (2010), I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice (...) upon newly according legal rights to animals. Compensatory injustice would likely result from such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

This paper outlines the current common law principles that protect people’s interests in their bodies, excised body parts and tissue without conferring the rights of full legal ownership. It does not include the recent statutory amendments in jurisdictions such as New South Wales and the United Kingdom. It argues that at common law, people do not own their own bodies or excised bodily material. People can authorise the removal of their bodily material and its use, either during life (...) or after their death, for medical or scientific purposes. Researchers who acquire human bodies, body parts or tissue pursuant to such an authority have a right to possess and use them according to the authorisation they have been given, but their rights fall short of full ownership because they are limited in the way that they can use the material. The legal rights of researchers who develop intellectual property and biological products from excised human tissue can be adequately protected by existing common law principles without the need for a new legal principle that people own body parts and tissue removed from their bodies. (shrink)

South Carolina State College was founded in 1896. As one of the Black institutions taking advantage of the Second Morrill Act of 1890, a large portion of the college's limited financial resources, its energies, and its programs were devoted to training students in agriculture, home economics, vocational trades, and in the education of teachers. These curriculums were considered appropriate for young Black men and women in the late nineteenth and early twentieth centuries.When the civil rights movement began to (...) challenge segregation in education in South Carolina in the late 1940s and early 1950s, the state's white leaders responded quickly and effectively by creating graduate and law programs at State College. To preserve the racial status quo and segregation in education, Governor James F. Byrnes subsequently raised funds, including one-half million dollars from the Rockefeller sponsored General Education Board, to improve long neglected facilities at State College. A sizable portion of the funds were devoted to the agricultural program.While the defense of “separate but equal” education by Byrnes and others ultimately failed, the changes fostered at State College did dramatically improve the institution in the 1950s and 1960s and brought a shift in its mission away from its traditional focus on rural and agricultural education for Black youngsters. By 1966, the college was nominally integrated. Paradoxically, in 1971 with enrollments declining and fewer students interested in pursuing agriculture as away of life, the agriculture program was discontinued. (shrink)