IPSA RC26 Human Rights Symposium. Accepted Abstracts

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IPSA RC26 HUMAN RIGHTS SYMPOSIUM
CARLOS III UNIVERSITY OF MADRID
ACCEPTED ABSTRACTS

 

Call for papers

1.- Youngtae SHIN, University of Central Oklahoma, USA “Human Rights: Conceptual Embeddedness versus Cultural specificity”

The UN Declaration of Human Rights in 1948 helped many cultures be more cognizant of the concept of human rights.  However, very few countries abide by this universal views of human rights. In this paper, I would like to explore how this universality fails to embrace cultural specificity, or worse, clashes with some cultural views of human rights. While there are many variegated views of human rights, I will focus on gender issues on different cultures that are potential sources of the violation as seen by the Universal Views of Human Rights.

2.- Alhadje Aly Garba KOUNTA, Université de Bamako, Mali, "Enjeux humains, socioculturels, économiques et politiques de la migration".

L'importance géopolitique mondiale des migrations s’est considérablement accrue ces derniers temps, alors que le monde connait un plus grand nombre de migrants qu'à tout autre moment de l'histoire. Le nombre de migrants internationaux a atteint 244 millions en 2015, soit une augmentation de 41% par rapport au chiffre de 2000, tandis que le nombre de migrants internationaux d'Afrique a atteint 34 millions, dont près de la moitié sont des femmes. En outre, le nombre de personnes déplacées de force est supérieur à celui durant ou après la Deuxième Guerre Mondiale, avec des chiffres atteignant plus de 65 millions à la fin de 2015.2 Ces tendances s'inscrivent dans le contexte de la titrisation croissante de la migration, l'externalisation du contrôle des frontières et des politiques de migration de plus en plus restrictives, qui ont contribué à la migration irrégulière.

À l'ère de la mondialisation rapide, les migrations humaines ont atteint un niveau sans precedent et constituent une caractéristique typique de notre époque. Tout au long de son histoire, l'Afrique a connu des mouvements migratoires, volontaires et forcés. La migration est un problème majeur au 21ème siècle et pose des défis sociaux, économiques et politiques aux décideurs engagés dans la gestion des migrations pour l'amélioration du continent.

Dans le drame actuel de l’immigration, il y a une dimension humaine, une dimension politique et une dimension économique. On peut énumère parmi les causes de la migration : 1- Les effets du changement climatique dans les zones rurales pauvres. La manque d’infrastructures aggrave la sensation néfastes ; 2- La mal gouvernance à travers l’injustice dans la répartition des biens et services d’Etats et du secteur privé ; 3- L’inadéquation entre le système éducation et le marché de l’emploi : le déficit de compétence port décrocher un emploi ou de pouvoir initier ses propres affaires, 4- Et la réussite et l’apport des migrants qui changent de statut social et contribuent au bien - être de leur famille et de leur communauté. Ces jeunes entre 18 à 40 ans espèrent rejoindre l’Europe, tandis que d’autres mettent le cap sur des pays africains plus prospères. Quelle que soit leur destination finale, ils nourrissent le même espoir, celui d’un bon emploi et d’une vie meilleure pour eux-mêmes et pour leur famille, laissée derrière eux. La pauvreté est une des principales raisons pour lesquelles les personnes migrent en quête d’opportunités économiques.

3.- Krzysztof LAZARSKI, Lazarski University, Poland, “Rights in History: Civic Rights and ‘the Rights of Man’, the predecessors of Human Rights.”


The notion of human rights is intimately connected with the twentieth century, but civic rights, freedoms and liberties are much older. In fact, they can be traced to antiquity and continued with varying fortunes throughout centuries until the present. For most of Western history, they were either intimately linked with citizenship, popular sovereignty and various limits put on political power (i.e., provided rights and liberties only to the members of a given political community), or had religious or philosophic foundation that stressed human dignity, sameness of nature and brotherhood of all.
 
Sometimes both currents coincided, when Christianity in ancient Rome demanded autonomy in spiritual sphere; or when the medieval Church formed a powerful counterbalance to royal power; or when the notion of religious freedom (historically the first of human rights) emerged as a reaction to religious wars in the sixteenth and seventeenth centuries.
 
In other times, these currents developed separately, when the nascent liberal thought redefined natural law into law of nature and began to claim “rights of man” as opposed to narrow rights of Englishman, Dutchman or Frenchman. By abolition of estates and redefinition of the notion of the people (nation), the French Revolution made an important step in the development of the “rights of man and citizen.” Legal equality in time animated the movement for female suffrage. But the French Revolution also gave birth to modern nationalism and mass politics. Mass politics coupled with social Darwinism produced chauvinism, the most virulent form of nationalism. Coupled with dire exploitation during early stages of the industrial revolution, it produced communism.
 
A reaction to the devastating consequences of mass ideologies, fascism and communism, ultimately led to the Universal Declaration of Human Rights (1948). Is it, however, a sufficient means to protect us in the future from tyranny and abuse?

 

4.- Papa Samba NDIAVE, Gaston Berger University, Senegal, “Political Rights and Politisation of Human Rights: The Case of the Clash between African Union (AU) and the International Criminal Court (ICC)?”


When the Statue of Rome was adopted in 1998 many people hoped it will mark the beginning of the end of impunity. In 2002, the International Criminal Court take to office. Many years after, the clash is evident between the Court and the African Union. The African organization gave priority to the stability of regional order and prefer reconciliation to long trial. But the Court want to procure justice for victims. In Africa, some leaders and policymakers think that the ICC practise double standers and selectivity.  Since the first AU decision on the ICC in July 2009, the continental body has cited various concerns related to the court; mostly based on allegations of bias against African leaders.

To date, the ICC has 10 situations under investigation, nine of which relate to international crimes of genocide, war crimes and crimes against humanity committed against African citizens. Within the principle of complementarity espoused in the Rome Statute, the ICC remains a court of last resort. It remains the responsibility of national legal systems to investigate, prosecute and try international crimes.
African states have been unable to effectively conduct the investigations and prosecutions needed to bring to justice those alleged to have committed international crimes against African citizens.

A strong recognition that the continent needs national laws, legal capacity and judicial mechanisms in place will only support the fight against impunity for international crimes, and help to provide access to justice for victims.
How to explain the clash between the AU and the ICC? Why the ICC practise double standers and selectivity?
These are some questions that we would discuss during this scientific meeting.

 

 5.- Annie MILLER, Ph.D. (Assistant Professor, Washburn University), and Amanda FINGER, M.A. (Executive Director, Laboratory to Combat Human Trafficking) ”From the Grassroots Up: Comprehensive Efforts to End Human Trafficking”

 As the anti-trafficking movement reflects upon 19 years since the passage of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol), the crime has expanded and the response has become more sophisticated.


Manifestation of a Global Issue in Local Communities  With the signing of the Palermo Protocol, countries implemented their own national laws drawing from the UN definition; in the United States, the federal Trafficking Victims Protection Act was passed in 2000. But in contrast to other social movements and human rights issues, the national anti-trafficking movement began with a “top-down” approach based on legislative definitions and directives, rather than as a bottom-up, grassroots experience. Federal disbursements of taskforce funding poured out for cities around the U.S. to prioritize the development and coordination of a response to human trafficking. At the local and statewide level, this was viewed as a mandate to examine a crime that was allegedly occurring within a given geographic scope, but the priority emerged from “outsiders” who lacked contextual knowledge of how trafficking looks locally.


In response to that “top-down” approach, the Laboratory to Combat Human Trafficking (LCHT) launched research efforts to explore our state’s understanding of the crime in context. Since 2012, we’ve tracked efforts in a single U.S. state aimed at ending human trafficking – our baseline assessment. The Colorado Project to Comprehensively End Human Trafficking follows one broad research question: What would it take to end human trafficking in Colorado? The Colorado Project 2.0 (“CP2.0” – available online here) represents an important milestone in that journey as this is the first replication of the original Colorado Project published in 2013. The community-based participatory research project collected data on each of the 4Ps.


This panel presentation will highlight a comparison across the recent publication, Collaborating for freedom: Anti-Slavery Partnerships in the UK (University of Nottingham’s Human Rights Lab) and LCHT’s CP2.0. Strengths consistent across geographies appeared in the capacity of partnerships to raise awareness, share information (intelligence), and conduct extensive efforts to train on human trafficking (trainings especially targeted to front line staff in public-serving agencies). It would appear that UK multi-agency partnerships face similar challenges that we find in our home state of Colorado: lack of shared language or definition of trafficking, dedicated funding or resource streams, representative membership or configuration (especially survivor involvement), clearly defined goals or outcomes, and data tracking or sharing. Based on our research in Colorado and Dr. Gardner’s work in the UK, we would like to lift up two specific recommendations for further attention. First, we argue that measurement and evaluation of partnership efforts remains lacking. And second, we suggest there must be room for survivor leadership in each and every partnership effort.


The IASC toolkit creates a useful starting point for setting shared partnership goals, developing trust among partners, and identifying outcomes as markers of progress. Established partnerships, and long-established, parallel movement groups adopting trafficking as a mission, provide bounded samples and a visual mapping of anti-trafficking momentum across a given community, region or state. Engaging with practitioners, as in Dr. Gardner’s study, allows for “boots-on-the-ground” perspectives. Our research design, data collection, and analysis stages of the Colorado Project incorporated survivors, researchers, and practitioner perspectives. By embedding this array of voices, one sector is not prioritized over another and a level playing field is established in terms of expertise. The outcome of that shared research effort is the Colorado Project 2.0 Action Plan. The Action Plan 2.0 created a roadmap to prioritize statewide and regional efforts against human trafficking. Practitioners, survivors, and researchers viewed data from 17 partnerships across the state (29 focus groups), combined with 76 additional organizational-level interviews, and 183 survey responses to guide the creation of this Action Plan. Survivors led the review of each recommendation in the Action Plan to ensure our guidance is both trauma-informed and supported by voices with lived experience. Supporting and sharing lessons learned from local partnerships will be paramount to global progress in ending human trafficking.

6.-Christian AKANI, Ignatius  Ajuru  University   of  Education,  Rumuorlumeni Rivers  State,  Nigeria.“The United Nations (UN) & human rights. Challenges & prospects”

The two World Wars (1914-18, 1939 – 1945) cannot be forgotten easily This is because of its uncanny brutality and imponderable consequences which in no small measure demonstrated , man’s capacity to destroy himself and decimate the environment. This assertion is predicated on the millions of people who were gruesomely killed, maimed and properties wantonly destroyed. The proliferation of weapons of mass destruction and weapons of lethal potency undoubtedly became an easy way to mediate an insatiable economic instinct. In fact, it was as if state actors had sworn an oath to twist and tear whatever was left of the earth. Surprisingly, the backlash of the wars are still plaguing humanity in the 21st Century. This shows that satisfaction of the demands of national interest at all costs is an ill- wind to mankind. Propelled by the desire to save the human family from imminent extinction, world leaders decided to stop the carnage. This was through the formation of a global organization, and the utmost respect for human rights. They were convinced that upholding the tenets of human freedom in all ramifications offers a guarantee for human security and development. Therefore, this study seeks to examine the extent the UN has been able to ensure that human rights become the cornerstone of human security. In accomplishing this onerous responsibility, what have been the challenges and prospects? This is a qualitative study, and data collected was based solely on secondary sources. These include, browsing of the internet, review of existing literature, UN Resolutions, Official bulletins, Newspapers, Magazines and visit to some research institutes like the Nigerian Institute of International Affairs (NIIA), Center for Black Arts and African Culture (CBAC) . It was discovered that since its formation in 1945, the UN has accomplished a lot in mainstreaming human rights. Consequently, many Regional bodies like the Economic Community of West African States (ECOWAS), European Union (EU), the Organization of American States (OAS) and member States of UN have keyed into the UN emphasis on respect and promotion of human rights as a minimum condition for global peace. In view of the above, we recommend that knowledge and respect of human rights should be intensified and deepened in the curriculum of every level of socialization. UN should also not relent to sanction member States that flout, and inhibit the efflorescence of human rights.


7.- Jeffrey DAVIS, University of Maryland, Baltimore (UMBC). Unites States. “Constitutional Impunity – How U.S. Courts are Breaking the Promise of Universal Human Rights, A Comparative Analysis”

Last year the U.S. Supreme Court ruled that officials did not violate any enforceable rights when they imprisoned and abused Muslim men without legal grounds after the September 11 terrorist attacks. One week later it held that an unarmed Mexican teenager who was shot and killed by a U.S. border guard had no rights courts could enforce.

Nearly 70 years earlier, as representatives from all over the world gathered to craft the Charter of the United Nations delegates from the big powers resisted emphasizing human rights. A delegate from India, Ramaswami Mudaliar, rose and stated “We are all asked to be realists, we are asked to recognize various factors in the world set up as it is today.” He argued, “There is one great reality, one fundamental factor, one eternal verity… the dignity of the common man, the fundamental human rights of all beings all over the world.” He continued, “If we are laying the foundations for peace we can only lay them truly and justly, and to do so, those fundamental human rights of all beings all over the world should be recognized.” The United Nations adopted the Universal Declaration of Human Rights on December 10, 1948.

In the years since, the United States has systematically marginalized and discredited international human rights in its domestic law while European nations have struggled to embrace it. Now other nations, including some of the staunchest European advocates of human rights, are resisting human rights enforcement and some are doing so using arguments similar to those proselytized by the U.S.. Protecting human rights, they claim, damages democracy and weakens national security.

In this paper I conduct a comparative analysis of rights enforcement in national courts and regional courts in order to:

• Explain how and why U.S. human rights jurisprudence has deviated sharply from that of democratic nations in Europe especially in the area of civil rights.

• Demonstrate that contrary to rulings from U.S. courts, human rights are derived from basic human dignity and are not delegated by treaties, constitutions, or statutes.

• Argue that the very purpose of democracy is the protection and promotion of human rights.

• Show how that if we are to “truly and justly” lay the foundations for a stable peace rooted in vibrant democracies courts must strenuously enforce the positive obligations of states to protect human rights, in addition to negative rights restrictions.

 

8.- Joana REBELO MORAIS, Institute of Social Sciences, University of Lisbon, Portugal. “Limitation of political rights – the case of the first democratic elections in Portugal (1975)”  

Lustration is a type of transitional justice mechanism commonly adopted in the context of transitions by rupture or collapse to remove individuals associated with the former regime from governments or the military or to prevent them from gaining access to these positions. Nevertheless, the literature on lustration laws rarely looks at one of its many forms: the limitation of political rights. This research aims to contribute to the broader debate about the impact of these measures on democratic consolidation, looking at the case of Portugal. The Portuguese democratization stands out due to its peculiarities. One of them concerns the means of dealing with the past, since the country faced an extremely punitive process that encompassed all types of transitional justice mechanisms. But one question remains unanswered: what was the impact of the ruptured transition on the political rights of the elite of the former authoritarian regime? The electoral law prepared for the first democratic elections, held in April 25th, 1975 – one year after the coup – contemplated several civic incapacities that precluded the participation of the former elite in the electoral act, whether by running or voting for the Constituent Assembly. This law was drafted by a special commission and affected anyone who had worked in the state apparatus – whether leaders or employees – and anyone who served the political police. However, the impact of this law in the preparation and the outcome of the first free elections is still unknown, as well as the roles of the main political actors – and their motivations – behind the writing and the application of the law. At the party level, it is expectable that this law had some impact on the composition of the candidate lists or even on the organization of the parties in the following years. At the procedural level, the plan of action put in place during the entire electoral process to ensure the application of the law in the national territory is unclear – and the potential number of people whose civic rights were limited unknown. At the legacy level, the effect of the limitation of political rights on the configuration of the Constituent Assembly – and therefore, in the Portuguese Constitution – could be relevant. This ongoing investigation is part of a PhD thesis and explores the limitation of political rights in Portugal’s democratization as a lustration process

 

9.- Monique FALCÃO, Visiting Researcher at Max Planck Institute; Professor and Researcher at University Santa Ursula – Rio de Janeiro, Brazil. Subject of right between colonial and post-colonial rights of Subject: when recognition of law questions Subject’s identity.

According to OIT Convention 169, 88’s Brazilian Constitution recognized, for the first time, specific civil and cultural rights for “quilombolas communities”. Those traditional people’s legal-anthropological definition are “communities self-identified as descendants of slaves occupying traditional lands”. Once Brazil had developed no official public policy for ex-slave’s social-economic inclusion, after abolition of slavery in 1889, most part of those communities remained marginalized occupying illegaly land where they used to live.

The legal regime of identification and recognition for “quilombolas” is based on critical anthropological methodology, developed under Brazilian historical and social specificities. However, those legal-technique criteria contradicts real-state market’s economic and political interests. Once legal recognition of “quilombola land” turns inalienable its “traditional land”, this land becomes completely out of real market. That’s why land conflicts and violence against quilombolas has increased in the last two decades instead of to reduce.

The empirical research was developed between 2012 and 2016 as direct observation of a specific urban quilombola community, placed since 1930 in a very rich and touristic area in Rio de Janeiro. It revealed different meanings of “quilombola community” operating as political, social and economic instruments to boost land conflicts and violence. On one side, neighbors and real-state market, interested in commercial value of occupied land operate an old colonial legal definition of “slaves” as common sense to argue that the community isn’t descendent of slaves. On the other side, the community evokes some aspects of current legal anthropological definition of “quilombola community” and builds its self-identity intending to defend the occupation of the land and to reach the legal recognition of the property of the land.

Considering generic theoretical hypothesis that the “subject of right” is defined by its respective “right of the subject”, the theoretical aim of this paper is to present i) a multifaceted Subject whose several different aspects can be recognized through historical, social and political elements of colonial and post-colonial legal definition of “quilombola”; ii) the “right of Subject” has its concrete limits for effectiveness defined by boundaries built by the shock / intersection between colonial and post-colonial speeches / meanings of “quilombolas communities”.

This investigation reveals material limits for effectiveness of human right’s multicultural conception. Mostly when multicultural public policies intend to protect specificities of vulnerable minorities groups, a critical analysis of boundaries between colonial and post-colonial definitions of Subject of rights allows to rethink political and legal strategies for minorities inclusion and recognition.

 

10.- Tomasz LITWIN, PhD, Jesuit University Ignatianum in Krakow Poland, “Do the same-sex couples have the right to marry under the rules of the Universal Declaration of Human Rights and the Constitution of Republic of Poland from 1997?”

The right to marry is clearly expressed in the art. 16 of the Universal Declaration of the Human Rights. Also Polish Constitution from 1997 regulates the institution of marriage in its art. 18. The main aim of the presentation would be to analyse if the same-sex couples have, regarding the mentioned rules, right to marry.
The introductory analysis leads to the conclusion that these rules do not establish the right to marry for the same-sex couples. The UN Human Rights Committee in Joslin vs. New Zeland stated that art. 23 of the International Covenant on Civil and Political Rights establishing right to marry concerns only opposite sex couples. The mentioned rule is similar to the art. 16 of the Universal Declaration of the Human Rights.
The Polish Constitutional Tribunal in its verdict on the constitutionality of the Treaty concerning the accession of the Republic of Poland to the European Union (K 18/04) supported by the majority of constitutional law experts stated that under art. 18 of the Polish Constitution which states that “Marriage, being a union of a man and a woman […] shall be placed under the protection and care of the Republic of Poland”, the marriage could be regarded only as the union of a man and a woman.
However, further research could lead to the opposite conclusions. The art. 16 of the Universal Declaration of the Human Rights only states that “men and women […] have the right to marry”. Men and women are plural nouns, hence this rule could be interpreted as establishing the right to marry for all persons of both sexes. It does not exclude the situation when two “men” or two “women” get married. Moreover, art. 2 of the Universal Declaration expresses the entitlement of everyone to all rights and freedoms set forth in this Declaration, without distinction of any kind, e.g. sexual orientation. This would mean that homosexual persons could be the subject of the right to marry, as they are “men” or “women”.
Recently, some constitutional law experts in Poland presented the opinion that art. 18 of the Polish Constitution does not expressly prohibit the marriage of the same-sex couples. These opinions were supported by the recent judgement of Warsaw Voivodeship Administrative Court. However, such interpretation of this rule brings serious doubts based on language-logical, teleological and historic-legal methods of legal interpretation.

 

 

11.- Alexander SUNGUROV, St Petesburg University, Russia, "Research, Education and Promotion of Human Rights Universality: Responsibility of Academicians" 


The 70th anniversary of the Universal Declaration of Human Rights is a good reason to think about responsibility of academicians for human rights promotion. The objective of paper is the history of RC26 for Human Rights of International Political Science Association (IPSA) as well as story about efforts of academicians for support of human rights education in contemporary Russia.
International Political Science Association (IPSA) was established in 1949 with strong support of new United Nation organization. The desire of this new United Nations organization for Educational, Scientific and Cultural (UNESCO) to stimulate development of the social sciences therefore necessarily gave rise to an enterprise that had both intellectual and institutional aspects. Therefore establishing of IPSA was a direct result of UN creation. Structure of IPSA consists from two main part – national organizations and research committee. Group for human rights study was recognized as study group in 1980, seven year later this group received Research committee Status. Now Research Committee #26 - for Human Rights consists from more than sixty members from twenty three countries, and near to 500 other IPSA members are interesting in human rights issue.


In second part of my paper I would like to present some concrete experience of promotion of civil education, based at the human rights approach. Now, in contemporary Russia it is not so good time for human rights education. But collaboration of some Russian academicians, Interregional Center for Humanity and Political Science STRATEGY, some deputies from Russian State Duma with Moscow Branch of Friedrich Naumann Foundation had very good result. The Report for Standing Committee for Science and Education of Russian State Duma about law-using practices in field of civic and human rights suction was prepared, published and now discussed in many Russian regions.

 

12.- Oscar PÉREZ de la FUENTE, Carlos III University of Madrid, Spain, “How can the internet change human rights on online hate speech regulations?”.


Different legal cultures have a variety of approaches to regulating hate speech, ranging from the American libertarian approach to the German positive liberty approach. There are current phenomena linked with the increasing levels of online hate speech. Cyberspace could be a good place to show the effectiveness of human rights. One view is to affirm that rights should be the same on- and offline while the other view is to defend that rights must be interpreted differently on internet.

There is a European regulation on online hate speech, but the American approach is not to regulate this issue. The point has been made in some Court cases that the Law is local but the internet is global. The restrictive rules on hate speech from one country can be easily left behind on the net. We are, therefore, faced with two possibilities: a) A change in how Law and human rights are currently conceived; b) Maintain the current situation, accepting the flaws in an imperfect system. Likewise, some people argue that cyberspace should not be rule free and laws must be enforced against internet users as they are for the rest of the citizens.

Hate speech has a ‘silencing effect’ -Fiss- for the members of minorities and this justifies some kind of regulation. The liberty/equality dilemma on free speech sometimes requires a solution in terms of protection of minorities. This view is near to the European approach and far from the American, but the net is single space and is global. Human rights must be conceived globally but in a sense compatible with the protection of minorities.

 

 

13.- Dr. L. MUHINDRO, S. Kula Women’s College, Nambol, Manipur, India, “State of Human Rights in India’s Northeast:Fake Encounter and Psycho-fear in Conflict State Manipur”

 

In contemporary, Manipur is in fact in a sorry state that a land of conflict in North East Region of India where human rights became a big question. Human rights in Manipur seem to handle by state and non-state actors. It is known to all that Manipur was coercively merged with Indian union w.e.f. 15 October 1949. Since 1980s insurgent movements had been emerged demanding sovereignty or to avail pre-merger status. Since then Armed Forces Special Power Act 1958, (AFSPA) has been executing till today to deplete or eliminate insurgent movement from the soil. Violation of human rights cases like threaten, abduction, extra-judicial killing, fake encounter, surrender drama of Indian Army, extortion were day to day order in this tiny state. Cases of human rights violation by state and non-state actors seem to incline during the last decade. People are always the victims of both the actors. The study attempted to insight how the power influence the immoral and unethical activities like fake encounter; to observe the modus operandi of the state and none state actors that lead to the violation of human rights; to analyse the voice of the public against extra judicial killing by both state and non-state actors. Both the qualitative and quantitative methods are applied. Case study; Empirical analysis; Analytical observation, etc., are the main tools but, it largely depends on field study-survey. Data are collected from the victim families through a structured questionnaire with snowball sampling method. The universe of the study is the entire territory of Manipur, India and the sample size of the study is 432. The finding shows that the military authorities in Manipur are not only above the civil administration but also the judiciary. They make their own rules and enforce them without regard to whether or not they contradict national laws or otherwise. It is evidenced that state actors usually do not respect human rights in Manipur. Thus the people of land have suffer a lot and looking for their rights. Ultimately, consciously or unconsciously they are in dilemma as they have psycho-fear cause of gun culture. 

 

14.- Jedrzej SKRZYPCZAK, Adam Mickiewicz University, Poznan, Poland, “The right to freedom of opinion and expression in the Universal Declaration of Human Rights - a contemporary perspective”

 

Freedom of speech is one of elementary and fundamental human rights, constituting the basis for the functioning of democratic societies and, at the same time, an indispensable condition for the development of the state and the individual. Such a thesis is substantiated in Art. 19 of the Universal Declaration of Human Rights. The 70th anniversary of the adoption of the Declaration prompts us to re-examine the content of Art. 19 in the context of the digital revolution and the dynamic development of the internet, and my paper will be devoted to this.
For it is noticed that there are numerous differences in the way of using freedom of speech in public space, traditional media and on the internet. The internet was developing in the spirit of freedom from all control. Almost from its very beginning, it was treated as a common good of all users. The necessity to undertake actions aimed at counteracting the intensified appearance of harmful, dangerous and illegal contents was relatively quickly observed. The discussion about the possibility of qualifying the internet space as a public space has been going on for many years. All the more so because new media technologies provide technical opportunities for tracking and invigilating everyone.
In this context, it seems necessary to re-examine the content of Art. 19 of the Universal Declaration of Human Rights. It must be borne in mind that the specifics of "new media" depend, among others, on the fact that it is the users themselves who play a significant role in shaping and disseminating content, and thus they can also carry out effective actions for the freedom of speech. On the other hand, there are concerns about the possibility of violation of civil liberties by arbitrarily interfering in users' statements by internet portal administrators. Such phenomena as fake news (disinformation) may pose significant threats to freedom of speech, but ways to fight these phenomena may be an excuse to introduce institutional censorship.

15.- Patrizia RINALDI, Institute of Migration Studies_IUEM, Comillas Pontifical University, Spain, “Vulnerable and Voiceless: the right to be heard of Unaccompanied Migrant Minors”.

Thousands of minors are migrating unaccompanied to high-income countries. This paper focuses on unaccompanied migrant minors from the Global South to Europe. The principle of "the best interest of the child", enshrined in international and national law, provides the basis for protecting minors, but is reconfigured through practices of outsourcing services that are often not translated into positive results for the well-being of children. In fact, state institutions and non-governmental actors often find themselves enveloped in a complex, contradictory and costly bureaucratic procedure that fails to give due consideration to the best interest and leaves the children surrendered, defeated by the lack of access to the system of protection due.
This document seeks to address precisely this situation. In particular, children’s rights are a cross-sectorial field of law, but the duality of the legal status of unaccompanied minor and asylum seekers is often forgotten by European States. The research question is “To what extent and by whom is the right of the child to be heard?"
The analysis is carried out for the preparation of this paper concentrated on three methodological resources: (a) I provide an overview of international, European, and national law mapping the existing domestic law framework in light of benchmarks set out by the human rights instruments. (b) I review reports and documents issued by international governmental and non-governmental organisations and the consultation of secondary literature on the subject. (c) I give the experience provided by participant observation research carried out by the paper-giver in a Caritas Refugees Centre.
The present paper aims to prove that the application of article 12 of the UNCRC in the reception process provides the agency with the minor, fundamental in the integration process.
In the vision of children’s ‘living rights, the transition to adulthood is conditioned and the "best interests" are reshaped according, to the local actors involved.
Understanding childhood as a changeable part of society also implies recognition that how the society rises children, and the choice children make, do not shape only their future, but also the entire society.

 


16.- Jesús GARCÍA CÍVICO, Jaume I University, Spain, “Scientific aspects of the UDHR as a cultural milestone”

The Universal Declaration of Human Rights (UDHR) is a cultural milestone under a certain conception of culture that has to do with rationality. The UDHR means the proposal of a normative code of universal validity, so it can be considered as an historical achievement related to an idea of culture linked, in turn, to the notions of reason and progress. In this sense, it is where a scientific perspective can be integrated, for example, in the design of sociological tools aimed at evaluating the effectiveness, mainly, in order to understood the social, economic, cultural and material conditions that make this social, juridical an political efficacy possible.


 

17,.- Andrés GASCÓN-CUENCA, Human Rights Institute, University of Valencia, Spain, Distribution of Hateful Messages Through the Internet: An Evaluation of the Sanctions Established by the Spanish Criminal Code.


The classical metaphor of the marketplace of ideas as established by Milton or Mill (Gordon, 1997) has noticeably change since its first theorizing. Nowadays, with the use of new tools and platforms of communication, people not only debate in a public square in front of a crowd, but globally with thousands and thousands of possible listeners. This recent way of communication has shifted the possibilities of exercising the right to freedom of expression, exploring new ways of manifesting political disaffection or inconformity with the way policy is done. However, this communicative scenario has not only been used to encourage political participation and debate about social matters but also to distribute the classical ideas of racism and xenophobia. A reality that has set the use of hateful messages as a weapon of political mobilization to radicalize the debate, promoting alterity and paradoxically, the exclusion of certain sectors of the society of the political debate itself.
Thus, from the European Union perspective, to confront this reality, the Council passed the Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. This piece of legislation requires from EU countries to punish as criminal offences, among others, public incitement to violence or hatred directed against a group of persons or a member of such a group defined on the basis of race, color, descent, religion or belief, or national or ethnic origin.
Consequently, the Spanish legislator passed in 2015 a modification of the Criminal code to adapt it to the Framework Decision requirements. The article 510 was extensively changed, including in its § 3 as an aggravating circumstance the fact of distributing through social media, the Internet or other communication technologies messages that publicly incite to: hate, hostility, discrimination or violence; or harm the dignity of the person through actions that entail humiliation, scorn or discredit against a person or a group motivated by racism, antisemitism, ideology, religion or religious believes, family situation, ethnicity, race or nation, national origin, sex or sexual
orientation, gender, illness or disability. As a consequence, a person performing these actions, can end up in jail up to 4 years.
In such a way, this paper will critically analyze from the perspective of proportionality the national case-law decisions imposed to people that enacted the before-mentioned conducts, to evaluate if they are in line with the requirements established by the European Court of Human Rights.
 

 

18.- Agnieszka GRZECHYNKA, The Jesuit University Ignatianum, Krakow, Poland, ”Spain and Catalonia. Political Struggles in the Light of Human Rights”

Symbols of Catalan independence movement - whether in the form of yellow ribbons, attached to clothes by the inhabitants of Catalonia or slogans, painted on the facades of buildings (and calling for the restoration of freedom of those detained after the referendum of autumn 2017) - have become an almost integral part of Barcelona, photographed by foreign tourists with no smaller frequency than the architectural works of Antonio Gaudi. The fact that so-called "Catalan case" arouses growing interest of external observers, became possible not only thanks to the activities of the separatists themselves (who clearly try to draw the attention of the international community), but also due to ethical, moral and legal doubts (in terms of political human rights), that constitute not background, but rather the first plan of Spanish-Catalan political struggles.
The conflict between the parties, seeking support for their own actions in the provisions of the Constitution of Spain or in the idea of political human rights, flared up in the period preceding the controversial independence referendum of October 2017. Catalan separatists, although they declared respect and understanding for constitutional arguments, decided to draw on higher-level legal acts, international treaties that confirm the need to prioritize human rights in this discourse. Although it is impossible to undermine this argument and question the rights of nations to self-determination, serious doubt arises when we look at Catalonia as an entity wishing to exercise this same right. The Catalans - despite undeniable documentation of their own cultural and linguistic identity - have not been officially recognized as a nation. Another doubt that needs to be raised is the question of whether human rights always and unconditionally occupy a higher position in the hierarchy of legal acts and should be prioritized over the internal law of a sovereign state.
Having said all that, one could ask why - despite these numerous doubts – the Catalans decided to raise the argument of human rights. This question will be addressed during my presentati

 

19.- Aftab ALAM, ZHDC/University of Delhi, Human Rights Violations of Minorities: Narratives of Targeted Violence in India

The paper critically analyses the claim of legitimacy that Indian State makes when it comes to human rights? Similarly, it also exposes the forces that try to de-legitimize human rights to further their own vested interests? Of late, India is witnessing a disturbing trend where right-wing Hindutva forces have emerged powerful and seek to challenge the legitimacy of human rights. Minorities are under attack and their human rights violations are not being taken seriously. This paper is analytical and empirical. It seeks to focus on human rights violations and further steps to enhance human right regime. It unpacks how religious minorities’ human rights violations become a tool of legitimacy being claimed by the majority community. Religious minorities have faced human rights violations and there is persistent impunity for communal violence against religious minorities in post-colonial India. The paper examines the causes and conditions of targeted communal violence. On global level, India has not lived up to expectations of promoting respect for human rights and justice.

There has been recurring pattern of structural injustice and impunity. This study tries to map, understand and evaluate how effectively the State has secured human rights and justice for victims of mass communal violence.

 

20.- Andrzej Marian ŚWIĄTKOWSK, Jesuit University in Cracow, Poland, Social rights in Europe and free platform work

Platform work - which emerged recently as a separate employment technology in the post-industrial era brought to the world by the Industry 4.0 - is not regulated by employment and labour law in majority of European countries. Legal status of people performing work at the digital work platforms is uncertain. Contrary to the rules of Revised European Social Charter of the Council of Europe (May 3rd, 1996) the rights of individuals performing jobs in non-standard forms of employment are not being protected in vital areas such as: equal treatment, maternity leave, working time, decent wages, working time, access to social security benefits, vocational training, freedom of association, collective bargaining, collective disputes and legal actions (strikes). In the period of sharing (collaborative) economy it is necessary to focus on the obligation of European Member States on the issue of compliance with international principles - the right to work in safe and healthy working conditions, to receive fair (decent) remuneration, the right of employed women to protection, the right to equal opportunities and equal treatment in matters of employment, the right to protection in cases of termination of employment, the right of workers to the protection of their claims in the event of insolvency of their employer, the right to dignity at work. People employed online via platform are working at their own risk. They are not entitled to the right to protection of health, social security, social and medical assistance and the right to benefits from social welfare services.
The work is not a commodity, not a human service, neither a technology. Instead of accepting not serious arguments that platform economy complies with all the relevant legal regulations, including lex loci laboris European Member States ought to at least: clarify current employment status of “independent contractors”, guarantee them the right to organize and negotiate collective agreements, payment base either on the of piece- or project principle, social protection, transparent system of dispute resolution between clients and workers, improve their access to information related to their clients in spe as to develop co-operative labour management relations between representatives of workers and platform organizers.
 

21.- Alfredo DOS SANTOS SOARES, Comillas Pontifical University, Spain,“The (un)protection of internally displaced persons under the Global Compact on Refugees”

Forced displacement of populations is per se an accumulation of human rights violations and, as such, is "one of the most tragic phenomena of our time". It is also the most prominent quantitative and qualitative change in the nature of forced migration in general and the refugee problem in particular, at least since the creation of the United Nations High Commissioner for Refugees (UNHCR) in 1950. Its victims, the internally displaced persons (IDPs), are those forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a consequence or to avoid the effects of armed conflict, situations of generalized violence, human rights violations, large-scale development projects or natural or man-made disasters, and who have not crossed an internationally recognized state border. Although they are immensely more numerous and bear the same suffering as refugees, they are often condemned to the most hopeless helplessness, which is proportional to the exiguity or lack of a normative and political, humanitarian and institutional framework for an international response to this pressing problem.
By promising to "leave no one behind" in the new path of sustainable development, Agenda 2030, adopted in 2015, seemed to illuminate the plight of IDPs by expressly recognizing their rights, systematized in 1998 in the Guiding Principles on Internal Displacement, and crystallised, at the African Union regional level, in the Kampala Convention (2009). In line with Agenda 2030, the New York Declaration for Refugees and Migrants, adopted in 2016, highlighted, for the first time in the UN headquarters, the need for a global governance regime for human mobility which, to be such, must under no circumstances ignore the protection of the human rights of IDPs.
On the basis of the foregoing, through an effort of reflection and analysis sustained by a review of the literature, this paper aims to assess to what extent and degree the Global Compact on Refugees, envisioned in the above-mentioned New York Declaration and adopted by the United Nations General Assembly on 17 December 2018, advances the arbitration of sustainable solutions that the dramatic situation of millions of IDPs demands.
 

 22.- Herena Neves Maués Corrêa de MELO, Amazon University, Brazil, “The ineffectiveness of the constitutional amendment number 81/2014 and the deconstruction of the foundations of contemporary slavery labor in Brazil”

 

 

This theoretical and documental paper aims to partially analyze data involved in the process of approval of the Constitutional Amendment nº 81, which inserted in Article 243 of the Brazilian Federal Constitution the expropriation sanction in case of contemporary slavery for noncompliance to the social function of property. To the Brazilian supreme law, the requirements to fulfill the social function of the rural property, provided for by Article 186 of the Magna Carta, include the rational use of soil, compliance to environmental laws as well as with the welfare of owners and laborers. This way, there can be no observance to the right of property, nor its guarantee, if this right of property harms the human dignity and their rights through contemporary slavery, which is typified as crime on Article 149 of the Brazilian Penal Code, and is forbidden in every international human rights agreement Brazil has signed for. On these terms, there is a necessary criticism to the new text of the Constitutional Amendment nº 81, which hermeneutically empties the efforts to a critical sanction and that had been debated in the National Congress for 19 years, as a real possibility of contribution to eradicating contemporary slavery in Brazilian lands. In the approved text, the present Amendment, to its applicability, brings future regulation as a necessity, as adduced by the expression “as set forth by law”. Such expression brings back the discussion over contemporary slavery, that was already regulated in the terms of Article 149 of the Penal Code, making the emptying of this concept possible and falling back to the understanding of years of this degrading practice, as inferred from the Bill nº 432 of 2013, which was thought to modify what had been established by the article 149 of the Brazilian Penal Code. In this study, different categories of contemporary slavery and the social function of property were presented, followed by a contextualization of the proposal of amendment to the Constitution of 1988, approved in May 2014 as Constitutional Amendment nº 81. Lastly, passages from the regulations of the cited constitutional amendment and bill were referenced according to the discourse analysis methodology.



 

23.-Carlos R. FERNANDEZ LIESA, Carlos III University of Madrid, Spain, ·”Human rights and democracy. Europe, Spain and Catalonia”

This communication aims to analyse the situation of human rights in Catalonia. International law and European law will be taken into account. Compliance with international standards of human rights, democracy and the rule of law will be the subject of analysis. Likewise, the principle of pluralism and interculturalism in Catalonia will be addressed . It is also appropriate to address the issue from the perspective of the rights of minorities and subminorities. International and European human rights law and the constitutional and European framework provide a relevant and necessary approach of analysis to interpret the situation of human rights in Catalonia. The study aims to move away from activism at the service of nationalism to serve as an objective and neutral framework against interpretations of the law guided by purposes other than human rights.

24.- Giuseppe Matteo PEZZULLO , Carlos III University of Madrid, “The Global Compact for Migration and the universality of Human Rights: the gender perspective.”

After World War II, the concern about the protection of fundamental rights led the International Community to create some legal instruments, norms and institutions that would have prevented other widespread violations of Human Rights. The same UN Charter enshrines, in its preamble and article 1, the principle of cooperation among countries for the promotion and protection of Human Rights and fundamental freedoms. In this context, articles 55 and 56 of the mentioned Charter have a paramount importance, as the former binds States to promote the continuous improvement of living conditions and in general the universal respect of fundamental rights while the latter fosters them to cooperate for the achievement of the objectives set in the previous article. Following these principles, the Global Compact, adopted on 2018, may be considered as one of the concrete political agreements to guarantee a high standard of living conditions for migrants, with the aim to eradicate any form of discrimination between citizens and foreigners. Indeed, though of non-binding nature, this document has a great impact because it strengthens the idea that the promotion and protection of fundamental rights is a global concern that needs to be addressed through common and cooperative policies by the international community.
In this context, through an analysis of the Global Compact Agreement, I aim to reaffirm the idea of universality of Human Rights considering them as an indivisible structure of legal norms that encompass Civil and Political Rights and Economic, Social and Cultural Rights. In this first part, I try to demonstrate that the disagreement of a bunch of governments about this document might be considered as a regression that harms the proposals of the other international covenants already signed and ratified. Following this approach and taking in account the process of specification of Human Rights, the second objective of my paper is to analyze the gender perspective of the Global Impact Agreement finding whether it might effectively contribute to the achievement of the general objective set by article 5 of the Convention on the Elimination of All Forms of Discrimination against Women about the eradication of social and cultural patterns that de facto prevent the effective gender equality.

25.- Pablo SARTORIO, Carlos III University of Madrid, “Human Rights behind bars. Paying a debt that keeps on growing”.

“Any society, any nation, is judged on the basis of how it treats its weakest members -- the last, the least, the littlest.”1 It is undisputed that among the weakest members of any society are those behind bars. Although the most common argument to justify their situation is that those who break the law deserve to face the harshest punishment and to be behind bars, such affirmation is myopic at best.
As a criminal defense attorney for the last nine years, I recognize my bias towards those I have represented as in my opinion, they are not defined by their mistakes. However, biases aside for
the most part, I have been able to see that wrongdoers and victims are not neatly divided as initially thought. Instead, those roles can be interchangeable making the boundaries as blurry as good and evil. Does keeping individuals behind bars actually keeping us safer? Can we incarcerate massive amount of individuals and continue to call ourselves, the beacon of freedom? Is the way we deal with those behind bars so morally wrong as to amount to a human rights violation? I continue to ponder over these questions.
This paper discusses the relationship between the United Nations (UN) Declaration of Human Rights, specifically, the UN Standard Minimum Rules for the Treatment of Prisoners (dubbed the Nelson Mandela Rules in the revised 2015 version) and the current state of the penitentiary system in the United States. Next, it briefly analyzes the Mandela Rules discussing what are the protections provided against Human Rights for prisoners and evaluate it against what occurs in practice. To this end, we discuss the case of Marcus who faced years behind bars for assaulting another man and whose humanity and background was the key to unlocking his own shackles.
Marcus’s case exemplifies why the criminal justice system is not designed to rehabilitate in its current function often estranged from human rights even in the most developed countries, such as the United States, but gives us hope that even in the most egregious circumstances, we can give someone a second chance at redemption.

 

26.- Helena TORROJA MATEU, University of  Barcelona, Spain, ”Human rights and self-determination of peoples versus secession”

This paper is developed to address the need to clarify fundamental concepts of the international legal system regarding the principle of self-determination of peoples and its relationship to separation, secession, access to independence and other related concepts in displacements of sovereignty. The current historical moment is marked by the empty use of legal concepts in the sphere of public affairs. This use strips them of their role of promoting order, peace and the common good of the societies that they govern. Language has become a powerful weapon in the battle to retain power to benefit the exclusive interests of those who hold it; whoever controls the language will dominate the weak. In the issue at hand, this means blurring the objective concept of the self-determination of peoples in international law. The social consequences of this disfigurement can be seen in our common lands, in the Basque Country, in Catalonia, even as they spread across the rest of Spain, into Europe and, from there, to other continents, in a return to the 19th century, which, it should be recalled, preceded two barbaric world wars. This course will show that, based on rigorous application of the art of legal interpretation of international norms, the principle of self-determination of peoples is a specific international regime revolutionarily established by states in the 1960s to attribute the right to sovereignty and independence to colonies and occupied peoples. This concept is not comparable to secession, which is a form of territorial usurpation, something that is tacitly prohibited by states within the framework of the principle of self-determination itself. Nor is it comparable to the notion of territorial separation, a form of transfer of sovereignty (devolution) that a state may freely decide. Thus, secessionist movements in the international order cannot legally assert the objective notion of the principle (lex lata), because neither minorities nor any other part of a state’s population are holders of the right and because it does not include any right of separation (devolution) in cases of discrimination or gross and systematic violations of human rights (remedial secession). Anything else is simply an invented use of legal concepts (lex ad hoc inventa).
 

27.- Karen GARCÍA CURIEL, Carlos III University of Madrid, The securitization of migration in United States. Violations of the human rights of people in an irregular migratory situation.

Currently, the migration in United States is a phenomenon that is intrinsically linked to national security. This approach was origined in the terrorist attacks of September 11, 2001, date in which migration ceases to be an ordinary issue on the political agenda and is considered a national security concern. This process was called securitization, a situation characterized by the presence of police and military forces that use mechanisms, procedures and technologies of a warlike confrontation with the aim of preventing (and fighting) the entry of unauthorized persons in the American territory.

This event brings in parallel the implementation of policies and anti-immigrant speeches, xenophobia and discrimination against this vulnerable group, based on the idea that the irregular or undocumented immigrant is a terrorist or criminal; and that, therefore, its entry into national territory is an imminent risk, justifying the deprivation of their rights.

From these coordinates, the main effects on the human rights of these invisible subjects are: violations of due process, arbitrary detentions, family separation (mainly of women and children), refusal of medical and psychological care, discrimination based on nationality, color, sex, age, disability, religion, orientation and sexual identity; in addition to practices that violate the integrity of the individual during detention and deportation.

It is important to rethink the image of the immigrant in an irregular migratory situation, which, a couple of decades ago, was perceived as a relevant economic actor that, in certain cases, committed administrative faults and not as a potential terrorist. Reason enough that, for example, it is the police and not the military forces who perform border control tasks.

 

 

 

 

28.- Reginaldo da Motta Correa DE MELO Junior Herena Neves Maués Corrêa de MELO, Amazon University, Brazil, “The effectiveness of budgetary public hearings on the definition of priorities of public policies on behalf of the accomplishment of social rights”

The public hearing is an instrument that enables popular participation on the decision process, making it possible for the society to intervene in the construction of the public affairs and the consequent effectiveness of the fundamental social rights provided for in Article 6 of the Brazilian Federal Constitution of 1988, which includes education, health, alimentation, work, housing, transportation, leisure, safety, social security, protection to maternity and childhood as well as the assistance to the destitute.
The purpose of carrying of this participative spectrum is to establish the debate over important matters that affect society’s general interest, considering the social rights that are meant to be reached, modulating the budgetary capacity, which is limited, enabling meeting the totality of these rights in a specific social situation.
In case of budgetary public hearings, provided for by the Fiscal Responsibility Law, it configures the preliminary consulting to society in which its concrete actions are awaited in the most diverse areas of action of the Public Power.
It is convenient to highlight that in order to legally establish political development, economic and social public policies, the Federal Constitution of 1988 has ratified the creation of udgetary pieces to implement the public expenditures systematics. From then on, the Executive Power, in all its sections, was obligated to hold public hearings so the society could manifest on the creation of management public policies and effective fulfillment of the community’s necessities when creating budgetary pieces.
The budgetary public hearings, therefore, must be analyzed for their aspects of potentiality, observing in which levels those opinion gatherings will configure a debate and the public consultation has turned into an instrument of effective participation on the administrative sphere.
The accomplishment of the consultation by itself, even though listening to society’s urges, does not mean that citizens have exercised their right of opinion, since the budgetary proposal may not bring in its core, actions that show the effectiveness of concerning matters to the collectivity. Therefore, the core of social participation’s effectiveness by the budgetary public hearings must build, from a concrete debate, the budgetary systematic able to allow that the public financial execution concretely reflects the list of fundamental rights needed to the social welfare

 

29.- Veronica REDA, University of Siena, Italy, “Climate Change and Sustainable Development: facing present challenges and working towards goals and the future”

As humanity faces climate change and global warming, the biggest threats of its history up until now, it is clear that a different approach to the development of different communities around the world is needed more than ever before. In fact, when referring to development, the wording has already changed. People talk about sustainable development which is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” as stated in the report of the World Commission on Environment and Development, “Our Common Future”, originally published in 1987 by the United Nations.
The research and work behind this paper focus on the importance of the 17 UN Sustainable
Development Goals (SDGs), otherwise known as the Global Goals, and on the main reasons every nation must plan a future where all these goals are achieved by protecting and promoting human rights.
The United Nations’ 2030 Agenda for Sustainable Development has at its core the following aims: eradicating poverty and ending hunger, protecting the planet, ensuring responsible and technological progress and freeing society from violence and fear, among others. After thorough consideration and through an analysis of the 2030 Agenda, I decided to stress the attention on: Goal 7. Ensure access to affordable, reliable, sustainable and modern energy for all; Goal 11. Make cities and human settlements inclusive, safe, resilient and sustainable; Goal 13. Take urgent action to combat climate change and its impacts.

 
 


30.- Victor Carlos PASCUAL PLANCHUELO, Complutense University, Spain, Is the holding of a referendum to decide on the secession of a territory in accordance with International Law? The effects of the Recognition of States.

The right to self-determination is being claimed by nationalist movements that promote not only the exercise of this alleged right in the context of colonial or oppressed peoples, but also within the framework of democratic systems, and that demand the holding of referendums in which the population can decide whether or not to become a new independent State. This interpretation of a presumed right to decide may clash with the principle of territorial integrity enshrined in most of domestic legal frameworks and in International law. Recent history provides us with examples of the holding of such referendums, which have been internationally endorsed on account of emerging from an internal agreement or due to the concurrence of exceptional circumstances. The referendum is the democratic mechanism to legitimate the independence; a close and direct link exists between the self-determination referendum and the independence of the new state. The form and the context in which that referendum takes place are, without doubt, essential elements for that independence to gain international recognition later, and vice versa, the form in which independence takes place will grant international acceptance or not to the referendum held. Consequently, we can infer that the international community does accept some of these referendums and their independence processes through the institution of the recognition of states. On the contrary, the international community opposes, through non-recognition, referendums and secessions that break democratic constitutional frameworks and that pursue the independence of peoples whose right to internal self-determination is respected. Recognition takes particular relevance, not only to support, hold or reject the creation of a new state in the international scene, but also, in narrow connection with it, to validate or invalidate a referendum held with the intention to later declare independence. Therefore, when the intended independence is in opposition to national and international Law, the referendum will in principle be considered illegal (see referenda of Donetsk, Luhansk, Catalonia, etc).
Finally, to determine precisely the effects that could cause the recognition or non-recognition of an aspirant state to gain Statehood, we will adopt a casuistic focus by examining some recent experiences.
 

31.- Ayako INOKUCH, Makoto KIRIMURA, Mayuki NAGAO, Driverless Car Policy Needs Appropriate “Driver”: Analyzing Impacts of its Technology and Marketing on Rights to Transport in Aging Society


This paper will analyze driverless car technology, especially in relation to rights to transport in depopulated areas. Right to transport has been not only argued as a human right, but also been recognized as a prerequisite of fundamental human rights. The driverless car technology is currently experiencing remarkable progress. Some experts estimate this technology should be ready for practical use in about 5 years. Driverless cars are expected to support forthcoming aging society by filling up labor shortage and providing safer transportation.
In Japan, facing the most super aging society in the world, ensuring transportation of depopulated areas is hot agenda. Since public and private transport services eventually withdrew from depopulated regions due to insufficient demand and driver shortage, people in those regions heavily rely on their own private cars. People who cannot drive a car (ex. the elderly, children, persons with disabilities, economically weak persons, etc.) face difficulty on transport. This situation again causes depopulation and exacerbates remaining people’s situation, resulting in a vicious circle. Their fundamental rights, their access to food, hospital and social life is threaten. The government and car companies have already started demonstration experiments of driverless community buses in depopulated areas.
New technologies should be scrutinized on their possible human rights impacts. Driverless cars are also under investigations by various engineers and researchers. Their focus is mainly ethical questions over car accidents so-called Trolley Problem. However, driverless cars will not come alone. They should be closely looked considering their structural impacts on society as well. Due to their nature of driverlessness, this technology will drastically transform the industry. People no longer need to own their cars and parking spaces. They may share one car among a community and the number of purchased cars will decrease. Expecting forthcoming drastic industrial change, major car producing companies already started to transform themselves into mobility service providers, such as existing taxi companies. This means, production of private cars must stop near future, and existing transport services can be dominated by a few mobility service companies.
However, in depopulated areas, it may matter. Even if driverless cars reduce labor cost from the most labor-intensive industry, driverless cars are not always profitable in depopulated areas. Even in new technology era, states need to intervene transportation industry to ensure right to transport of depopulated areas. This paper will use literature survey and findings from field study at a depopulated village in Japan.
 

32.- Elena LAPORTA HERNÁNDEZ, Carlos III University of Madrid, Spain, Guarantees of non-repetition. Contributions towards a more sustainable implementation of gender perspective in transformative justice processes

Neither the first international tribunals that emerged after Second World War nor those that were established during the 1990s adequately addressed the specific consequences that those conflicts had on the bodies and lives of women. And although the Rome Statute of the International Criminal Court contains some related provisions (and there are some good practices), we still do not have a conviction reflecting that impact.
On the other hand, transitional justice processes have been slowly incorporating the gender perspective supported by a considerable theoretical development by feminist authors. Furthermore, the move towards transformative justice has also been of the utmost importance for these studies.
In this respect, it has long been clear that violence and other discriminations suffered by women are not a consequence of the conflict which simply exacerbates them. In reality, they pre-exist and endure after the conflict, since it is patriarchy as a paradigm of domination the one that upholds them. However, one of the main obstacles we still face is that patriarchal structures have remained practically unchanged in recent times: certain short-term advances are achieved, but in many cases they are not sustainable.
Despite the efforts of recent years to incorporate the gender perspective, there has been a lack of political will and, consequently, it has been insufficiently or only partly addressed. At the same time, there is usually no global strategy within countries and therefore structures are not questioned either.
As is widely known, guarantees of non-repetition are measures aimed at preventing future violations of human rights. Nevertheless, they have received less attention by academia and have not been developed in transitional justice processes to the same extent as other reparation measures, in spite of the fact that they can contribute to weaken some of the domination paradigms that are behind certain violations of human rights. Whether guarantees of non-repetition should be interpreted as a form of reparation or if they should also be considered to be specific measures other than reparation is a key point.
In view of the above, this research is expected to contribute to the conceptual development of this figure, as an instrument that might support a more sustainable implementation of gender perspective in transformative justice processes and a better fulfilment of international obligations regarding women’s human rights.



 

33.- Migle LAUKYTE, Carlos III University of Madrid, Spain, Trustworthy Artificial Intelligence and Human Rights


In April 2019, High-Level Expert Group on Artificial Intelligence, set up by the European Commission, has published its Ethics Guidelines for Trustworthy Artificial Intelligence (AI), which addresses the future of AI development in Europe. In particular, these Guidelines work out a vision of AI that Europe should foster and indicates the features that any AI-based system should have: the framework is composed of three parts, namely, lawful, ethical and robust AI. The Guidelines do not deal with the first of these parts—lawful AI—where, among other things, authors include the necessity that AI would respect fundamental human rights: this is the so called “fundamental-rights based approach” which is the approach that EU promotes with respect to AI.
As the Expert Group prefers to focus on ethics and robustness of AI, this paper will focus on lawfulness of AI. In particular, I will focus on the impact that AI could have on human rights, established in the Charter of the Fundamental Rights of the European Union (EU), other relevant international treaties, and specific regulations such as General Data Protection Regulation. The Guidelines list some of the human rights that should be the foundational stones for any AI within the EU, namely, protection of human dignity and human freedoms in the broad sense of the term, respect for democracy, justice and the rule of law, equality and non discrimination and citizenship-related rights, such as the right to vote. These rights also reverberate in the discussion on ethical AI, where specific ethical principles are being discussed.
The aim of this paper is to address the aforementioned human rights and see in what ways AI could have an impact on them: how could AI not only respect (passive stance) but also support and help to bring into being (active stance) some of these rights? In particular I will look at the existing AI applications and discuss whether we are approaching the challenge to make AI work for (and not against) human rights in the right way. Furthermore, the paper will also raise the question whether AI could advance any kind of new human rights that we might consider to be fundamental in the future. For instance, do we have a right to know when we interact with an AI on telecommunication networks and not with a human being? Do we have a right to explicability of algorithms?

 

 


 

34.- Tatiana BARANDOVA, National Research University Higher School of Economics Campus at Saint-Petersburg, Rusia, The (Possible) Role of Ombuds in Implementation of Sustainable Development Goals 2020: Case of Russia in the Fields of Gender Equity Dimension and Bio-political Issues.

The Ombuds (in Russia it titled as The Plenipotentiary Commissioner for Human Rights) as the National Human Rights Protection institutions, were established in majority of ex-“soviet camp” countries following the global trends in the period of Soviet system collapse while taken political course on transition to democracy after Perestroyka. They absorb all problematic points of political, social, ecological, religious, cultural and legal contexts in the multinational, multi-confession and high level of social inequality in country while the politics of gender equality adopted, contested and negotiated during the late period, starting just at the end of 90s. Meanwhile, due to ignoring (and sometimes even rejecting) gender component of human rights, public policies and institutions in contemporary Russia (and in other post-communist countries as well), this case shows contrasting example in comparing with many. In Russia gender regime of the Ombuds remains still unstudied, no appropriate methodology elaborated, lack of empiric materials accumulated. Not much of gender analysis of its establishment process and on-going activity undertaken yet. There has been no systematic study of practices and, as a result, not many recommendations for antidiscrimination activities offered. Meanwhile, the institution shows high level of women’s political representation (up to 40% in some periods) and potencies of introducing protection of gender-based rights violations via its tools named The Annual and/or Specialized Reports.
Regional HRCs as an institution having a complex nature , and found at the boundary of legal, political and socio-cultural spaces. Legislative consolidation, ideological basis, positioning in institutional design in some regions, and methods of staffing assignment allows to identify it as partly-independent institution, while its functional characteristics and repertoire of practices correlate with social aspects of public interests protection. Ombuds are also an instrumental entity (mechanism) for asserting individual rights and freedoms, rehabilitation of discriminated people. RHRCs are also an instrumental entity (mechanism) for asserting individual rights and freedoms. In order to identify the component of its gender sensitivity, both ways of analysis are important: normative and socio-political (as public), and socio-cultural and psychological (as private). I pretend to consider this state-based human rights protection institution also as one of the actors to be involved in the Sustainable Development Goals implementation in the wide spectrum, but in this paper I am analyzing consideration of their activity and further possible role, starting from Human Rights and Gender Equity fields.