Laws, Volume 7, Issue 1 (March 2018) – 11 articles

In Trinity Lutheran Church v. Comer, the U.S. Supreme Court established a new constitutional rule. While the exact breadth of the rule remains in doubt, the new jurisprudential principle appears to be as follows—except where such actions would violate the Establishment Clause, the Free Exercise Clause prohibits constitutional actors from conferring or denying benefits solely because of individuals’ or entities’ religious exercises. As discussed in this article, this rule has immediate, long-term ramifications for constitutional jurisprudence, particularly as applied to religious freedom. In light of the potential changes it may engender, the purpose of this three-part article is to provide an overview of Trinity Lutheran and its expansion of rights for student religious groups on the campuses of public college and universities. Full article

In the 21st century, even with the advent of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the existing built environment still fails the neighborhood accessibility needs of people with disability. People with disabilities’ human right to the neighborhood is, at face value, enshrined in legislation and ‘much’ built environment accessibility legislation is in place. But, built environment accessibility practice has been, and continues to be, shaped by a hidden discourse based on theoretical underpinnings little understood by built environment practitioners. Similarly, built environment practitioners have little understanding of either the diversity of the human condition or the accessibility needs of people with disability. In Australia, the operationalization of built environment accessibility rights is, via opaque legislation, not necessarily reflective of the lived experience of people with disability, and weak in terms of built environment spatial coverage. Empirically, little is known about the extent of built environment inaccessibility, particularly neighborhood inaccessibility. Therefore, the question explored in this paper is: How might an understanding of models of disability and human rights inform the improvement of built environment accessibility, for people with disability, at a neighborhood scale? Literature related to disability and human rights theory, built environment accessibility legislation primarily using Australia as an example, and built environment accessibility assessment is drawn together. This paper argues that built environment practitioners must recognize the disabling potency of current built environment practice, that built environment practitioners need to engage directly with people with disability to improve understanding of accessibility needs, and that improved measure, at neighborhood scale, of the extent of existing built environment inaccessibility is required. Full article

In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the fair use model in the United States. Thus far, Israel, Liberia, Malaysia, the Philippines, Singapore, South Korea, Sri Lanka and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption. This article examines the increasing efforts to transplant fair use into the copyright system based on the U.S. model. It begins by briefly recapturing the strengths and weaknesses of legal transplants. The article then scrutinizes the ongoing effort to transplant fair use from the United States. Specifically, it identifies eight modalities of transplantation. This article concludes with five lessons that can be drawn from studying the ongoing transplant efforts. Full article

This article develops the notion that poorer nations of the Global South are particularly disadvantaged in terms of realizing disabled people's human rights in practice. This is because they are situated in what is termed the global peripheries of law. These are peripheries in which very limited human and financial resources are available to practically realize disability human rights (reflecting processes such as the outmigration of trained professionals, devaluation of currency as a condition of debt repayment, and dependence on agricultural exports and imports of expensive manufactured goods, including medicine, from the Global North). Being on the global peripheries of law also reflects legacies of colonial and neo-colonial violence and oppression in an unequal global capitalist order, such as ongoing and widespread violence against women and unsafe working conditions—both of which result in death and the geographically uneven production of impairment. This uneven production of impairment also needs to be considered as an important part of understanding disability human rights law in a global context. Following a brief overview of the U.N. convention on the human rights of disabled people and the U.N. Covenant on Economic, Social and Cultural Rights to provide a global legal context and of the Inter-American Human Rights System to provide a regional legal context, the article illustrates why it is so difficult to realize disabled people's human rights in practice in the Global South, through a case study of Guyana. Full article

Abstract: This article reviews the health and wellbeing of Aboriginal and Torres Strait Islander Australians with intellectual disability in the Australian prison system through a human rights lens. There is an information gap on this group of Australian prisoners in the health and disability literature and the multi-disciplinary criminal law and human rights law literature. This article will consider the context of Indigenous imprisonment in Australia and examine the status of prisoner health in that country, as well as the status of the health and wellbeing of prisoners with intellectual disability. It will then specifically explore the health, wellbeing and impact of imprisonment on Indigenous Australians with intellectual disability, and highlight how intersectional rights deficits (including health and human rights deficits) causally impact the ability of Indigenous Australians with intellectual disability to access due process, equal recognition and justice in the criminal justice and prison system. A central barrier to improving intersectional and discriminatory landscapes relating to health, human rights and justice for Indigenous Australian inmates with intellectual disability, and prisoners with intellectual disability more broadly in the Australian context, is the lack of sufficient governance and accountability mechanisms (including Indigenous-led mechanisms) to enforce the operationalisation of consistent, transparent, culturally responsive, rights-based remedies. Full article

Sheltered work and related practices remain a prevalent service for people with intellectual disabilities. However, as a result of being placed in these, participants overwhelmingly remain segregated and excluded from their wider communities. This paper explores whether, with the advent of the United Nations Convention on the Rights of Persons with Disabilities, we can at least begin to assess the equality implications of such placements and argue that the experience of segregation itself represents numerous rights violations and discrimination. Having considered traditional equality mechanisms and their bearing on people with intellectual disabilities, this discussion explores how far the Convention’s re-envisioning of the basic principles of equality can perhaps provide a more promising outlook and ideological stance. Indeed, during the Convention’s inception, the negotiations circled around the conflicting opinions as to the purpose, usefulness, and future of sheltered work, revealing the existing tensions between protection and autonomy, shrouding all disability policy discussions. As a result, the question of sheltered work is not explicitly addressed in the treaty and the Committee on the Rights of Persons with Disabilities have been unable to definitively declare that the practice of sheltered work constitutes an act of discrimination. However, the Committee does as times demand that sheltered workshops be phased out where it is obvious that the practice of sheltered work is directly linked to the exploitation of workers. Moreover, certain provisions in the Convention might help in determining wrongful discrimination in some, if limited, instances. Full article

This article provides an overview of China’s reaction to the G20/OECD Base Erosion and Profit Shifting (BEPS) project. From 2013 to 2015, the OECD developed a series of actions designed to address BEPS activities by multinational enterprises, culminating in a final report of 15 action steps. The article reviews and explains China’s reaction to the BEPS project and its actions in detail, with a particular focus on transfer pricing issues. It shows that China has actively participated in both developing and implementing the BEPS project. The article further suggests that in the post-BEPS era, China is expected to implement the BEPS project in a more consistent and coherent way, and will take whatever measures necessary to guarantee the successful implementation of the BEPS package in collaboration with the global community. Full article

This article argues that civil mental health laws operate to constrict how people think, understand, and speak about psychosocial disability, madness, and mental distress. It does so with reference to views and experiences of mental health service users and psychiatric survivors (users and survivors) and their/our accounts of disability, madness, and distress, such as those articulated by the emerging field of Mad studies. The analysis considers the application of the rights to freedom of opinion and expression that are enshrined in the International Covenant on Civil and Political Rights and other international human rights instruments to the mental health context. The article explores the suppression of freedom of opinion and expression that is effected through the symbolic violence of psychiatry and the mental health paradigm. Focusing on Australian legal frameworks, the article discusses how the material violence and coercion characterising mental health laws compound this process. It is further argued that civil mental health laws, by codifying the tenets of psychiatry and the mental health paradigm so as to render them largely unassailable, validate the ontological nullification of users and survivors. The foregoing analysis exposes dangers of adopting a functional test of mental capacity as the pre-eminent legal standard for authorising involuntary mental health interventions. It is suggested that considering freedom of opinion and expression from the perspective of psychosocial disability and madness reinforces the Committee on the Rights of Persons with Disabilities’ interpretation that such interventions are incompatible with international human rights standards. Full article

The last waves of reform that affected, and continue to affect, the Belgian legal system led to an injunction for increased responsibility on the part of local managers, the jurisdiction chiefs. This tendency was initiated in the 1990s, with the introduction of a managerial logic into the legal sphere, whereby local initiatives took precedence in the absence of any clear and binding direction. The 2014 reform project, through its three constituent pillars, led to the strengthening of this logic, to the point where it became an important subject. The jurisdiction chiefs were therefore confronted with a new type of responsibility in that they became responsible for the dissemination of managerial discourse within their local body, for the implementation of change, and, consequently, for the success of this change, while at the same time, being confronted by a state and by political authorities that preferred to take a back-seat role. By observing, from an exploratory perspective, the developments caused by this transformational dynamic with regard to the role and function of the jurisdiction chiefs, our contribution highlights the wide range of receptions and appropriations of the reform project, and the concepts supporting the founding trio of pillars, based on five emerging, empirically-established subjects. Full article

Since the 1970s, Italy has undertaken a process of inclusion of children with disabilities in mainstream schools, has implemented an anti-discriminatory educational policy, and abandoned segregated educational practices. In September 2014, the Italian Government initiated a process of “modernization” of the whole educational system, and attempted to fully align domestic legislation with the wide-ranging obligations enshrined in Article 24 CRPD. Law No. 107/2015 on the reform of the educational system empowered the Government to adopt legislative decrees to promote inter alia an effective and inclusive education for persons with disabilities. After a long and somewhat troubled process, a legislative decree on inclusive education was finally adopted in April 2017. This article, building upon previous research, critically discusses the innovations brought by this recent reform, situating them in the broader Italian legislative framework on the rights of people with disabilities. By focusing on Italy as a case-study, this article aims to reflect on the challenges surrounding the creation of an inclusionary educational system that goes beyond a mere integration in mainstream schools and ensures full and effective participation of all learners, meeting the standards imposed by Article 24 CRPD. Full article