Jane Maslow Cohen
This article discusses critical debate about individual control over the beginnings of life that has sprawled across the fields of academic law, philosophy, politics, religion, the life sciences, and the self-christened field of bioethics from the 1960s up to the present. The subject has formed in and around a cascade of popular pressures; biomedical advances; legislative, judicial, and public policy initiatives; media attention; and the boiling politics in which, at least in the United States, the whole series of enterprises has been bathed. The present undertaking will train on the law. It covers contraception in the United States, abortion law and policy in the United States, and contraception and abortion in Europe and the United Kingdom.
Eleanor D. Kinney and Priscilla Keith
This chapter examines the issue of access to healthcare, with particular emphasis on the five dimensions of the model proposed by Roy Penchansky and J. William Thomas: availability, accessibility, accommodation, affordability, and acceptability. It also discusses the constitutional powers of states and the federal government with respect to health, along with relevant health law. It outlines the three categories of law governing access to physicians and hospitals: direct obligations of physicians and hospitals to provide free care to the indigent; federal programs to provide health insurance or health services to vulnerable populations; and laws that affect the delivery of care based on the patient’s physical characteristics and immigration status. The chapter concludes by considering the United States’s failure to realize the human rights aspect of health in international treaties and suggesting that the country’s efforts when it comes to access to physicians and hospitals leave much to be desired.
This chapter highlights the accountability of international organizations in refugee and migration law. It sets out the general responsibility regime as it applies to international organizations with special reference to refugee protection. Several international organizations are pertinent: most prominently UNHCR and the International Organization for Migration (IOM), but also the EU through Frontex, its European Agency for the Management of Operational Cooperation at the External Borders, and the UN Office of the High Commissioner for Human Rights. Refugee protection also involves several different settings, from the running of refugee camps and the guarding of borders to the handling of individual asylum applications. In general, the chapter demonstrates that responsibility is highly elusive.
Jenny S. Martinez
James C. Hathaway
The architecture of the Refugee Convention and Protocol is unique in the world of international human rights law. Rather than being framed in absolutist terms, these treaties embody a principled compromise between attention to the needs of refugees, on the one hand, and recognition of the legitimate interests of host countries, on the other. Refugees are advantaged not only by the attribution of rights on the basis of a non-reservable and flexible definition of refugee status, but also by a commitment to declaratory rather than constitutive status assessment, non-exclusivity of rights accrual, and the existence of no more than constrained exceptions and derogation authority. The legitimate concerns of host countries are catered for by the structure of incremental rights acquisition through attachment and the conceptualization of most rights on a contingent basis.Sadly, the workability of the compromise embedded in the architecture of the Refugee Convention and Protocol is today threatened by critical failures at the level of implementation: specifically, that these treaties continue to rely on ad hoc, State-by-State efforts rather than coordinated action, and that States have failed to allocate protection responsibilities and burdens on the basis of relative capacities and resources. The challenge is thus not to renegotiate the foundational refugee treaties, but rather to change the way in which protection is operationalized.
Armed Conflict and Forced Migration: A Systematic Approach To International Humanitarian Law, Refugee Law, And International Human Rights Law
This chapter examines the application of three branches of international law to forced migration and refugee protection in an armed conflict. It provides a comparative assessment of these branches of international law in terms of their application to protection of refugees in war, refugees fleeing war, and refugees in post-war contexts. The analysis indicates that international humanitarian and refugee law are not a panacea in terms of protection, and that it is international human rights law that fulfils the central function of filling the gaps in protection left by humanitarian and refugee law.
This article focuses on debates, both historic and contemporary, surrounding assisted reproductive technologies (ART) and abortion. After providing a historical background on ART and abortion and their integration into modern reproductive life, the article discusses the current usage of both techniques in America. It then compares the populations who avail of ART and abortion before turning to an analysis of the regulatory landscape surrounding the two procedures, along with reproduction as a fundamental right. It also examines the issue of whether the existing jurisprudence concerning the right to avoid procreation can be applied equally to the right to access parenthood through assisted conception. The article concludes with an assessment of three areas in which ART and abortion have overlapped: selective reduction of multiple pregnancy, the personhood movement, and perinatal genetic diagnosis.
Álvaro Botero and Jens Vedsted-Hansen
This chapter addresses the standards on asylum procedures that apply within various regulatory contexts. Its normative focus includes not only the standards for determination of refugee status under the Refugee Convention and Protocol, but also those concerning the examination of applications for complementary or subsidiary forms of protection. Nonetheless, the legal interaction between asylum procedures and Convention refugee status will be the starting point. As the Refugee Convention is scant on procedural standards, the chapter discusses the soft law standards that partly fill the normative gap. It also examines procedural standards concerning subsidiary or complementary protection that have been developed on the basis of human rights norms prohibiting refoulement beyond the scope of the Refugee Convention. Human rights treaties generally include the right to effective remedies at national level and are therefore relevant for the administrative or/and judicial procedures that apply when States parties to such treaties examine asylum applications. Although directly linked to the protection against refoulement under human rights treaties, the requirement of effective remedies has indirect effect also for procedures concerning the determination of Convention refugee status.
Catriona Mackenzie and Denise Meyerson
This chapter evaluates the relationship between autonomy and freedom of speech, examining a variety of autonomy-based justifications for the importance of speech and especially of freedom of speech. The differences between these justifications relate not only to the different conceptions of autonomy that underpin them, but also to their different responses to the problem of competing autonomy interests. It is plausible to think that the state should respect, protect, and promote the autonomy of everyone—speakers, listeners, thinkers, bystanders, and members of the public at large. Enhancing the autonomy of some might, however, require restricting the speech of others. The liberty-based conceptions of autonomy prioritize the interests of speakers and listeners and hold that the primary obligation of the state is the negative duty not to interfere with the autonomy of individual speakers and listeners. By contrast, the relational conceptions of autonomy hold that the negative liberty interests of individual speakers and hearers should be balanced against the positive duties of the state to promote the social conditions necessary for the development and exercise of autonomy by all citizens.
Wouter Vandenhole and Gamze Erdem Türkelli
The best interests of the child principle is considered a pillar of children’s rights law and, according to the UN Convention on the Rights of the Child (CRC), is to be a primary consideration in all actions concerning children. Yet best interests is an elusive concept and principle that has no single authoritative definition or description. Internationally and domestically relevant in such diverse areas as family law, adoption, migration, and socioeconomic policymaking, the best interests principle requires flexibility and is best served by a case-by-case approach, as has been recognized by the UN Committee on the Rights of the Child and the European Court of Human Rights. This chapter analyzes relevant international case law and suggests the use of a number of safeguards to prevent such requisite flexibility from presenting a danger of paternalism, bias, or misuse.
Chris A. Robinson
Mark Barnes and David Peloquin
This article examines federal and state laws on biomedical research in the United States. It also considers the tension among various regulatory regimes and highlights conflicting regulations that could be better harmonized. The article first describes regulatory regimes that govern protections for human subjects, with particular reference to the federal Common Rule and the Food and Drug Administration’s regulations on the protection of human subjects. The discussion then turns to state laws on informed consent; privacy laws; laws on clinical trials registration and data transparency; financial disclosure requirements; research misconduct such as fabrication, falsification, and plagiarism; and animal research requirements. The article concludes by presenting additional considerations related to federal funding of research.
This chapter examines border violence as ‘crimes against humanity’. It begins by explaining what it takes to interpret the phrase ‘crimes against humanity’, as it appears in article 7 of the Rome Statute, in light of rules of interpretation articulated in the Vienna Convention on the Law of Treaties. The chapter then looks at three theories of crimes against humanity. The first follows a basic tenet of Kantian ethics: the charge of crimes against humanity denounces the transformation of humans from ends in themselves to means of governing, or even of eliminating, the lives of others. A second option posits that the key aspect of claims concerning crimes against humanity directed at refugees is that they exert a kind of structural violence: certain kinds of border violence establish a system that extinguishes legal protections for humans, while making such results appear natural. Unlike other cases in which structural violence is rendered transparent to criminal law, contemporary border violence against asylum seekers and refugees can be effectively captured within a criminal law framework. A third interpretive theory suggests that border violence is deleterious towards people’s social lives, as it separates them into hermetic units and prevents interaction and mobility between groups. Proponents of this view may proceed to argue that sealing borders and eliminating the right to asylum is part of a larger plan for solidifying global racial and economic hierarchies: a ‘global apartheid’.
This chapter focuses on the cessation of refugee status. Questions about when, how, and why refugee status ends remain critical for academics, States, UNHCR, and refugees alike. If States are uncertain about when their responsibilities towards refugees will end, the result may be ever-stricter policies concerning borders, refugee status determination procedures, and individuals, even once they have been granted some form of protection. The changes wrought by this restrictionism would likely be to the long-term detriment of the laws, norms, and institutions of the refugee regime. Article 1C of the Refugee Convention provides an exhaustive list of ways in which refugee status can end. Due to the significant consequences of the cessation of refugee status for individuals and States, however, legal experts and UNHCR promote a strict, but contested, interpretation of article 1C.
This chapter starts with a critical assessment of the legal foundation of the concept of child participation from the perspective of the UN Convention on the Rights of the Child. It is followed by a discussion of how the right of the child to express her or his views should and could be implemented in the family, school, health care settings, legal proceedings, and in the community and society (public participation) and of the challenges children and others face with this implementation. The chapter concludes with recommendations for further actions that promote and support the participation of children in all areas of their lives.
Barbara Bennett Woodhouse
This chapter discusses the role played by human rights charters, such as the UN Convention on the Rights of the Child, the European Charter of Human Rights, and the African Charter on the Rights and Welfare of the Child, in establishing that children are not mere property of their parents but persons with their own independent rights to protection of family relationships and family identity. The chapter identifies specific provisions in these charters relevant to children’s family rights. It then examines various decisions of the European Court of Human Rights that address claims of violations of children’s rights to family in contexts including adoption, child protection, family reunification, access to birth records, and immigration, and that define appropriate remedies. The chapter closes by highlighting the growing threat to children’s rights to know and be cared for by their families posed by the populist backlash in wealthier nations against migrants fleeing war, violence, and poverty.
Karl Hanson and Olga Nieuwenhuys
A child-centered approach to children’s rights law recognizes that children shape, interpret, and practice what their rights are and that they have the right to do so. This chapter starts with critiquing essentialist tendencies that diminish children’s active engagement with their rights and discusses how the concepts of living rights and translations may help provide children the space needed to negotiate meanings and influence interpretations of their rights. The concept of living rights contends that the meaning, interpretation, and practice of children’s rights constitute a living, dynamic process. The concept of translations challenges the one-way idea of implementation to analyze what happens with children’s rights in the complex encounters of children’s and other actors’ perspectives. Taken together, living rights and translations help to understand the multiple readings of children’s rights, including those of children, at work in a given situation.
This chapter addresses a particularly vulnerable population of children, namely, children associated with armed forces or armed groups. These children are colloquially known as child soldiers. This chapter begins by surveying the prevalence of child soldiering globally. It then sets out the considerable amount of international law that addresses children in armed conflict, in particular, the law that allocates responsibility for child soldiering and the law that sets out the responsibility of child soldiers for their conduct. The chapter identifies significant gaps between the law and the securing of positive outcomes for former child soldiers, notably when it comes to post-conflict reintegration. The protective impulse that envisions militarized youth as faultless passive victims may not always reflect how youthful fighters see themselves nor necessarily support an emancipatory and empowering vision of how international law should promote the rights of children.
Maya Sabatello and Mary Frances Layden
Children with disabilities are among the most vulnerable groups in the world—and a children’s rights approach is key for reversing historical wrongs and for promoting an inclusive future. To establish this argument, this chapter explores the state of affairs and legal protections for upholding the rights of children with disabilities. It critically examines major developments in the international framework that pertain to the rights of children with disabilities, and it considers some of the prime achievements—and challenges—that arise in the implementation of a child-friendly disability rights agenda. The chapter then zooms in on two particularly salient issues for children with disabilities, namely, inclusive education and deinstitutionalization, and highlights the successes and challenges ahead. The final section provides some concluding thoughts about the present and the prospect of upholding the human rights of children with disabilities.