Laws2016, 5(3), 35; doi:10.3390/laws5030035 (registering DOI) - published 25 August 2016 Show/Hide Abstract
Abstract: The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality.
Abstract: This study questions the “clash of civilizations” thesis. Referring to the cosmopolitanization process as defined by Beck and Sznaider (2010), I analyze the cosmopolitanization of feminism, that is, the gradual recognition of “the others’ others”, the women, through the evolution of their political rights—the right to elect and be elected—at a global level. In this context, the descriptive representation of women, their substantive representation, and their voices within civil society in the North and the South highlight the fact that feminism is undergoing a process of cosmopolitanization, albeit in a slow and sporadic way. I present this argument from a postcolonial feminist perspective and base my research on NGOs’ data and on data provided by the Inter-Parliamentary Union and UN-Women. First, I analyze the cosmpolitanization process as applied to feminism. Then, following Beck and Sznaider (2010), I describe how this process is articulated ‘from above’ (top-down cosmopolitanization), referring to electoral data from around the world and to international law. Further, I relate to the cosmopolitanization of feminism ‘from below’, referring to feminist theories, cyberfeminism and the global civil/feminist society. In conclusion, I discuss the common future of feminism and cosmopolitanism.
Abstract: The aim of the present study is to describe and re-consider the findings obtained from analysis of 260 protection orders that were granted in cases of violence by men against their partners. The Prevention of Domestic Violence Law was enacted in Israel in 1991. The data collection for the study took place 10 years later, after the 1996 amendment was enacted. In this article I revisit the data, the only empirical data on protection orders in Israel, and examine both the process of obtaining protection orders and several attendant issues that are relevant to the procedure, such as the remedies the law offers and the use (or lack of it) judges make of them. The study compares the first ex parte hearings and the second hearings, and the discussion and summary sections provide an insight into the problems emerging from the description of the situation in Israel in light of the current knowledge existing in the world today.
Abstract: On 13 May 2014, the European Court of Justice ruled that search engines such as Google had a duty to respect EU citizens’ right to be forgotten. That is, the search engines—deemed “controllers” of information under the Directive—were obligated in some circumstances to remove or de-list links from search results that pertain to information that infringes on an individual’s rights under the Directive. In the fall of 2015, the Spanish Supreme Court found itself obligated to determine the application of the digital right to be forgotten in a different context: This time in a digital newspaper archive. However, since the right to be forgotten is purely judicially-created and not yet memorialized in a regulation (other than through judicial interpretations of the European Directive 1995/46/EC of the European Parliament and Council of 24 October on the protection of individuals with regard to the processing of personal data and on the free movement of such data), it is therefore appropriate to analyze Spain’s recent Supreme Court ruling as an indicator of the future of the right. What does this decision mean for the future of the right to be forgotten?
Abstract: High levels of violence against women and impunity in Guatemala have reached crisis proportions and have received increased international attention in recent years. The phenomenon of feminicide (e.g., killings of women in the context of state impunity), is widespread in Latin America and particularly acute in Guatemala. Many (if not the majority) are rooted in violence that becomes concentrated in the family. In this paper, we propose that both the structure and application of the laws in Guatemala contribute to widespread impunity. Police and judges use laws other than those created to address violence against women in order to justify lack of enforcement. For example, judges resist issuing restraining orders, and police refuse to apply them because this can violate perpetrators’ property rights. Judges also refuse to apply domestic violence laws because this violates the principle of equality under the law. Women refuse to use the legal system to seek justice because alimony laws will not be enforced and women are economically dependent. The discriminatory fashion in which these laws are applied leads to widespread impunity. Even though laws on the books could be applied otherwise, those who implement them privilege laws that conflict with violence against women laws. While much scholarship focuses on individual-level motives for violence, we instead analyze the socio-legal environment and existing legal codes that enable continued failure to respond adequately to violence against women. The legal framework and the legal code itself are deeply shaped by the context in which they are written—the structural, gender, symbolic, everyday and long arm of political violence that permeate all aspects of life in Guatemala and exacerbate women’s vulnerability, especially the poor. We argue that this broader legal context endangers the lives of women in Guatemala. We also extend the socio-legal scholarship to highlight failures for victim’s families and the disempowerment of women as they enter relationships.
Abstract: Immigration mandatory detention is a particularly harsh example of the structural violence embedded in immigration enforcement. It deprives liberty without bond for immigrants with prior crimes, and assigns many individuals to the harsh conditions associated with unnecessary and even wrongful detention. Mandatory detention has been justified on the grounds that mandatory detainees are a danger to public safety. This article puts to the test this presumption of dangerousness among mandatory detainees, and finds, to the contrary, that immigrants with prior charges or convictions are no more dangerous than any other category of individuals in Immigration and Customs Enforcement (ICE) custody. Using the risk classification assessment (RCA) tool, which the author is the first to obtain through the Freedom of Information Act, the article contributes to the growing criticism of mandatory detention, providing evidence that many of those in mandatory detention should probably have never been detained.