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Journal Cover International Journal of Human Rights and Constitutional Studies
  [8 followers]  Follow
   Hybrid Journal Hybrid journal (It can contain Open Access articles)
   ISSN (Print) 2050-103X - ISSN (Online) 2050-1048
   Published by Inderscience Publishers Homepage  [405 journals]
  • Plea bargaining and the trial penalty in Canada
    • Authors: Nishanth Augustine, Sudhish N. George, Deepthi P. Pattathil
      Pages: 206 - 219
      Abstract: This article takes an in-depth look into sentencing and into a concept that seems to be inherent within it, that is, the trial penalty. It seeks to answer the question "Should there be a trial penalty?". In doing so, it begins by analysing the pros and cons of plea bargaining and argues that the weight of the disadvantages of the process, taken together with the need to respect entrenched constitutional rights regarding the presumption of innocence and the right to a fair trial, mean that a trial penalty should not exist. It is then argued that while the intuitive existence of an explicit trial penalty is accepted by many within the system, there is a lack of empirical evidence to prove said existence. The article concludes by offering possible solutions to various problems associated with the plea process, as it is currently practised.
      Keywords: criminal law; criminal procedure; sentencing; plea bargaining; trial penalty; Canada; human rights; fair trial; presumption of innocence; constitutional rights
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 3, No. 3 (2015) pp. 206 - 219
      PubDate: 2015-10-14T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2015.072474
      Issue No: Vol. 3, No. 3 (2015)
  • Same sex marriage in Hong Kong: a right is more than a referendum
    • Authors: Reannon Navaratnam, Isabelle Lee
      Pages: 220 - 227
      Abstract: The legalisation of same sex marriage is an issue which to date, still holds great controversy in its application to Hong Kong society. At law, no legal recognition exits regarding the union of homosexual partnerships in Hong Kong, despite few legislative amendments being made in related areas of law. This paper will provide an analysis of Hong Kong's current position on same sex marriage and will propose potential legislative amendments necessary to advocate the importance of legalising this right to marry. A human rights perspective will thus be adopted, in order to evaluate some of the counter arguments put forward by those objecting to same sex marriage.
      Keywords: same-sex marriage; Hong Kong; referendum; homosexual partnerships; homosexual union; human rights; constitutional studies; equal rights; legal recognition
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 3, No. 3 (2015) pp. 220 - 227
      PubDate: 2015-10-14T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2015.072470
      Issue No: Vol. 3, No. 3 (2015)
  • Fundamental rights: the new generations in Iberian constitutions
    • Authors: Reannon Navaratnam, Isabelle Lee
      Pages: 228 - 241
      Abstract: In spite of the existing rich theories of fundamental rights, we are still facing complex issues regarding the identification and the constitutional relevance of new fundamental rights. The aim of the present article is to describe the state of the matter regarding the opening of the constitutional texts to new rights and the controversy about the new generations of rights in the framework of Iberian constitutions, i.e., the Portuguese and the Spanish Constitution. The exposition of the problem will highlight the main difficulties that the new fundamental rights entail and provide some solutions aimed to contribute to the peaceful coexistence between fundamental rights, the old ones and the (apparently) new ones. Most of the considerations will be done in light of the Iberian constitutions, but with a reasoning that can be transposed to many other Constitutions from European Continental law.
      Keywords: Portuguese Constitution; Spanish Constitution; fundamental rights; generations of rights; 4th generation rights; 3rd generation rights; biomedicine; open clause; implicit rights; constitutional interpretation; Spain; Portugal
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 3, No. 3 (2015) pp. 228 - 241
      PubDate: 2015-10-14T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2015.072482
      Issue No: Vol. 3, No. 3 (2015)
  • The role of the European Court of Human Rights' case law in shaping
           government decisions on migration policy issues
    • Authors: Reannon Navaratnam, Isabelle Lee
      Pages: 242 - 251
      Abstract: In this paper specific case law referring to ill treatment and the protection of article 3 ECHR, the right to liberty and security according to article 5, the effective legal remedy after article 13 as well as the best interest of children and the protection of private and family life after article 8 ECHR will be analysed. Moreover, the protection against refoulement, and the duty to provide assistance in cases of distress at the sea will be assessed. Further, the ECHR gives guidance for the asylum status determination (RSD) procedures in order to achieve harmonised RSD procedures. While, the ECHR has criticised - via its case law - the Dublin II system, stressing the need for a harmonised asylum system throughout the EU. Also, the court has assisted to the regulation of every day matters of migrants in the member states.
      Keywords: ECHR case law; migration policy; asylum status; ill treatment; interest of the child; refoulement; European Court of Human Rights; government decisions; right to security; right to liberty; protection of private life; protection of family life; distress at sea; h
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 3, No. 3 (2015) pp. 242 - 251
      PubDate: 2015-10-14T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2015.072483
      Issue No: Vol. 3, No. 3 (2015)
  • Globalisation vis-à-vis human rights: critical
    • Authors: Reannon Navaratnam, Isabelle Lee
      Pages: 252 - 265
      Abstract: We live in the Age of Rights. But we also live in the Age of Globalisation. So what happens when these two ideas collide or interact with each other on global scale? Since both these concepts emerged and interacted along the similar timelines post Cold War, the interaction of these ideas has lead to several multi-dimensional issues. A study of these issues highlights the uneasy relationship between globalisation and human rights as differential in different circumstances. On several occasion globalisation has had a positive impact on development of human rights and on several others it has lead to even more human rights violations restricting their development. In this backdrop, this paper attempts to study the relationship between them to critically analyse the various facets of globalisation vis-à-vis human right.
      Keywords: globalisation; human rights; globalised world
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 3, No. 3 (2015) pp. 252 - 265
      PubDate: 2015-10-14T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2015.072485
      Issue No: Vol. 3, No. 3 (2015)
  • Monitoring and addressing human rights violations by transnational
           corporations in Kenya
    • Authors: Michael Wabomba Masinde, Anne Anyango Rasowo
      Pages: 266 - 284
      Abstract: Economic growth and potential of many states are reliant on transnational corporations (TNCs). Despite the fact that TNCs contribute to the world's economy, they are often accused of human rights abuses. This paper examines how the laws that are applicable in Kenya control the behaviour of TNCs and prevents human rights violations by them. The paper further looks at the different measures that can be put in place to prevent human rights violations by the TNCs. In doing so, this paper explores the relationship between the interdisciplinary fields of investment law and human rights.
      Keywords: human rights; transnational corporations; TNCs; human rights violations; corporate accountability; state responsibility; Kenya; investment law
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 3, No. 3 (2015) pp. 266 - 284
      PubDate: 2015-10-14T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2015.072486
      Issue No: Vol. 3, No. 3 (2015)
  • The ECtHR in the role of a European Constitutional Court? Reflections
           on the ECtHR judgment Vallianatos and others versus Greece (7 November
    • Authors: Charalambos Anthopoulos, Christina M. Akrivopoulou
      Pages: 285 - 296
      Abstract: The paper that follows comments on the Vallianatos versus Greece (7 November 2013) judgment of ECtHR. As it is illustrated, in this extremely interesting judgment the Strasbourg Court has acknowledged the positive obligation of the Council of Europe state members in recognising civil partnerships as a right of both heterosexual and homosexual couples. In this judgment, the Court referred to its previous case law reiterating that the notion of family life is subject to social changes that oblige the Council of Europe state members to reinterpret its traditional meaning by expanding it also to alternative forms of family life while reserving for the states the competence to regulate the right to marriage. In this framework, the present comment aims in analysing the ECtHR stance on the homosexual couples rights to family life, marriage and civil partnerships while examining the Court of Strasburg role in reviewing national legislation as an informal European 'Constitutional Court'.
      Keywords: privacy; right to family life; right to marriage; European Court of Human Rights; same-sex marriage; sexual freedom; child rights; discrimination; registered partnerships; civil partnerships; homosexual rights; Greece; homosexual partnerships; social change; n
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 3, No. 3 (2015) pp. 285 - 296
      PubDate: 2015-10-14T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2015.072475
      Issue No: Vol. 3, No. 3 (2015)
  • Safe haven laws
    • Authors: Charalambos Anthopoulos, Christina M. Akrivopoulou
      Pages: 297 - 304
      Abstract: This article seeks to address the issue of safe haven laws in the USA, in the context of human rights. More precisely, they refer to the fundamental right to life and also to the adjacent, encompassing body integrity. The following deals with the pressing need in the USA to escape frequent situations in which undesired infants were 'placed in tragic scenarios' by their own mothers. The solution found was to create laws allowing mothers, parents or guardians to leave their unwanted child in a safe location, without being questioned in regard to their identity and also lacking prosecution for the crime. Hence, the central aim of this paper is to strike a balance between the advantages and disadvantages flown by the laws in question, with undoubted consequences upon the child, the parent(s) and the hypothetical adoptive parents.
      Keywords: USA; United States; safe haven laws; right to life; infanticides; young mothers; safe environment; child abuse; child endangerment; Nixzmary Brown; anonymity; identity issues; paternal rights; human rights; infants; unwanted children
      Citation: International Journal of Human Rights and Constitutional Studies, Vol. 3, No. 3 (2015) pp. 297 - 304
      PubDate: 2015-10-14T23:20:50-05:00
      DOI: 10.1504/IJHRCS.2015.072477
      Issue No: Vol. 3, No. 3 (2015)
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