Can criminal justice system’s officials freely violate crime victims’ rights, despite the alleged recent ‘victims’ revolution’? The constitutional value of provisions protecting officials from criminal or civil ramifications of their failures, limiting civil and criminal accountability and impact, is analyzed in this article.
It exists, for example, under US federal law and in Israel, and has been considered a meaningful deviation from the traditional binary structure of the criminal process.
However, the article will question the veracity of this ‘revolution’, and will show that even enforceability of these rights, often presented as radical, has only a limited value in these circumstances. It will be argued that even if the purpose of protecting the prosecution in its work is commendable, the absolute exemption provided in the law is disproportionate and preserves the traditional order, excluding populations from the proceedings.
In states composed of different ethnic, religious or linguistic groups, unfettered majoritarian democracy can threaten diversity or stability or both. Minority groups risk ending up as permanent losers and have few options than to assimilate or to alienate from the state. The first option endangers the group’s identity; the second can lead to separatism and the de facto or de iure fragmentation of the state.
Starting from the assumption that the risk of a tyranny of the majority is particularly dangerous in divided societies the paper looks at mechanisms to accommodate compound peoples. It argues that states characterised by deep cleavages can render democracy more acceptable and more sustainable by constitutionalising elements of treaty law, such as unanimity requirements, veto rights and eternity clauses. By using the example of Syria and by referring to other states characterised by civil war or violent conflicts, possible combinations of majority- and treaty-law will be explored.
Transnational reproductive practices produce an increasing number of cases where legal controversies occur in the domestic recognition of family ties. This paper elaborates on these controversies and argues for the need to formulate international norms. The author will examine particularly the key ethical and legal issues that shape the contours of the future normative instrument on transnational surrogacy. Judicial cases from different jurisdictions will illustrate the problems of unregulated transnational surrogacy. In the lack of comprehensive norms these cases offer the best tools for highlighting the ethical and legal issues. Second, the author will explore what would be the adequate international legal framework that would better respond to the challenges of transnational surrogacy agreements. In addition, she will argue that national and transnational surrogacy agreements raise different kinds of legal questions.
This paper aims to present a project that address the significant gap between judicial practices and legal scholarship in Brazil and to foster closer engagement of Brazilian federal judges with scholars. The project will advance research, policy and practice in three main areas: a) mapping of judicial rulings that rely on arguments clearly disconnected with legal texts and based on ad hoc reasons (i.e. arguments only applied for one singular case) to restrict fundamental rights; b) examination of judicial institutions and practices within the Brazilian judiciary, mainly those focused on salaries and benefits; c) developing judicial ethics guidelines, with the view to establish practical principles of governance of the judicial profession in Brazil on the basis of international human rights and best practices. The project addresses a pressing need in countries that have transitioned to democracy with limited judicial reforms, specially when judicialization of politics have taken place.
Collective memory matters politically. It is closely related to national identity and statehood; it can be used to legitimate a political power by creating a desired image of the past. This explains why states are preoccupied with legal regulation of collective memory prescribing by law what should be remembered and be forgotten.
The paper is devoted to memorial laws which are the legal tool of the states’ politics of memory. It seeks to answer questions: what are the limits and principles for legal governance of history in democratic society? how should the past be treated to avoid memory wars and tensions between communities and countries? Based on the concrete examples of memorial laws the paper shows their potential danger for human rights, democracy and interstate relations. The paper calls for a set of European principles of memory politics to stop current memory wars and prevent them in future.
Informed consent rule concerning the commercial space activities, especially suborbital flights, was firstly introduced in the US CSLAA 2004. It works on the basis of temporary licensing regime, thus establishing the operators the “duty to warn” and releasing the operators from liability of accidents due to inherent risks. The informed consent rule also boosted the early development of the US commercial industry of suborbital flights, which raised the discussion whether the rule of informed consent is desirable in Europe. Though the question may be answered in several aspects, e.g. tort law principles, the status of suborbital flights as aviation or space activities, technical safety development and space industry insurance status, this paper will address the question in the context of human rights law, the European Convention of Human Rights (ECHR) in particular.