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This paper explores the health rights of prisoners as defined in international law, and the mechanisms that have been used to ensure the rights of persons in detention to…
This paper explores the health rights of prisoners as defined in international law, and the mechanisms that have been used to ensure the rights of persons in detention to realise the highest attainable standard of health. It examines this right as articulated within United Nations and regional human rights treaties, non‐binding or so‐called soft law instruments from international organisations and the jurisprudence of international human rights bodies. It explores the use of economic, social and cultural rights mechanisms, and those within civil and political rights, as they engage the right to health of prisoners, and identifies the minimum legal obligations of governments in order to remain compliant with human rights norms as defined within the international case law. In addressing these issues, this article adopts a holistic approach to the definition of the highest attainable standard of health. This includes a consideration of adequate standards of general medical care, including preventative health and mental health services. It also examines the question of environmental health, and those poor conditions of detention that may exacerbate health decline, disease transmission, mental illness or death. The paper examines the approach to prison health of the United Nations human rights system and its various monitoring bodies, as well as the regional human rights systems in Europe, Africa and the Americas. Based upon this analysis, the paper draws conclusions on the current fulfilment of the right to health of prisoners on an international scale, and proposes expanded mechanisms under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment to monitor and promote the health rights of prisoners at the international and domestic levels.
Purpose – This chapter investigates the possibilities and limits for effectuating the Convention on the Rights of the Child (CRC) in Latin American countries.Methods – The…
Purpose – This chapter investigates the possibilities and limits for effectuating the Convention on the Rights of the Child (CRC) in Latin American countries.
Methods – The following dimensions are questioned: (a) the monitoring process of the CRC; (b) the contrast between the social organization of children's rights in the National State and the international pressures to incorporate foreign law into the national legislation; (c) the role of the Inter-American Court of Human Rights in the processes of child rights violations.
Findings – The main conclusion is that the possibilities of effectuating international treaties on human rights are different at three scales. Within international organizations (specifically within the United Nations and its Committees on Human Rights), it is possible to create conventions and monitor them, making use of the reports. At the nation-state scale, it is possible to formally incorporate the rights of the foreign law into national constitutions, but the punishment related to the violations of these rights will depend on the hierarchical relationship between domestic and foreign law. At the interregional scale, one can observe the effective actions of the juridical institutions (specifically of the Commission and the Inter-American Court of Human Rights) to punish and compensate the victims that suffered violations of the rights guaranteed by international treaties.
This chapter examines the delicate balance achieved by apex courts in new democracies when dealing with impunity for rights violations during times of transitional…
This chapter examines the delicate balance achieved by apex courts in new democracies when dealing with impunity for rights violations during times of transitional justice. While international law has clearly rejected amnesties for past rights violations, domestic politics sometimes incorporate amnesties as part of larger peace settlements. This puts courts in the difficult situation of balancing the competing demands of law and politics. Courts have achieved equipoise in this situation by adopting substantive interpretations and procedural approaches that use international law’s rights-based language but without implementing international law’s restrictions on amnesties. In many cases, courts do this without acknowledging the necessarily pragmatic nature of their decisions. In fact, oftentimes courts find ways of avoiding having to make any substantive decision, effectively removing themselves from a dispute that could call into question their adherence to international legal norms that transcend politics. In doing so, they empower political actors to continue down the road toward negotiated peace settlements, while at the same time protecting the courts’ legitimacy as institutions uniquely situated to protect international human rights norms – including those they have effectively deemphasized in the process.
This article describes and clarifies the human rights of persons with disabilities in the context of detention in light of the recently adopted and already in force…
This article describes and clarifies the human rights of persons with disabilities in the context of detention in light of the recently adopted and already in force Convention on the Rights of Persons with Disabilities (the Convention). Focusing on the Convention, the article sheds light on the legality of certain forms of detention affecting persons with disabilities, the substantive and procedural requirements for their detention, and on their rights in relation to conditions of detention. This article also provides an account of the different treatments and practices inflicted on persons with disabilities in prisons and other institutions and assesses whether they constitute torture and ill treatment. The authors argue that the Convention on the Rights of Persons with Disabilities represents a paradigm shift that requires States to modify and adopt laws, policies and practices that fully respect the right to liberty of persons with disabilities, and their equal enjoyment of rights while in detention, including the right to be free from torture and ill treatment.
LGBTI rights in Latin America.
In a country where judicial institutions are known to be inefficient and where activists have traditionally not engaged in legal mobilization, what explains the emergence…
In a country where judicial institutions are known to be inefficient and where activists have traditionally not engaged in legal mobilization, what explains the emergence of NGO strategic litigation? The author argues that a change in the legal opportunity structure impacts how activists interact with the legal system. Comparing two states in Mexico, the author demonstrates that the introduction of private prosecution rights opened the door for activists to litigate femicide cases. The emergence of strategic litigation has helped improve compliance with international human rights law and has had a demonstration effect on how to use the law to press for accountability.
Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and…
Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.
Expert witnessing in asylum cases involves depicting the conditions of the applicant’s home country as a context for judging a well-founded fear for life or safety. Most of…
Expert witnessing in asylum cases involves depicting the conditions of the applicant’s home country as a context for judging a well-founded fear for life or safety. Most of the elements involved in the work of the expert country witness are dynamic and change over time, creating new challenges and new resources for describing and interpreting country context. Examining several characteristic Honduran asylum cases separated by 20 years reveals not only an increasingly complex and multifaceted set of relevant conditions in both the sending and the host country, but also a significant broadening of the anthropological “tool kit” available to the expert country witness (as the expert witness becomes aware of its relevance to country conditions at a particular time), and an increasingly reflexive and complex relationship of the expert witness to the country in question and to the court. In the interim, emerging problems of contextual complexity, subjectivity, changing and competing images of reality, and the shifting applicability of legal and sociological definitions and categories arise and can be partially addressed with emerging anthropological or social scientific resources, raising anew the nature of the relationship of the expert witness to the court and the possible mutual influence of social science and legal culture upon each other over time. As the number of refugee seekers increases globally, can expert witnesses trained in social sciences help asylum courts to imagine new ways of bridging the gap between legal regimes of governmentality and the subjectivity of refugees?
Despite the restricted interpretation of the principle of equality and non-discrimination made by some members of the prison staff in Costa Rica, most of the authorities…
Despite the restricted interpretation of the principle of equality and non-discrimination made by some members of the prison staff in Costa Rica, most of the authorities and policymakers are committed to the express prohibition of unjust treatments on grounds of gender identity and sexual orientation. Notwithstanding, there is a gap between the normative framework and the reality of the detention facilities in the country. This paper aims to present the progress and challenges in the Costa Rican penitentiary system on the specific needs of LGBTI persons deprived of liberty, from a human rights perspective.
This paper is the result of the analysis conducted by United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD) from the data collected and systemized during a qualitative study, led by the same institution in 2016, regarding the situation of Lesbian, Gay, Bisexual, Trans and Intersex Persons (LGBTI) persons deprived of liberty. These findings and a review of the actions implemented recently by the competent authorities to protect the rights of these population groups allowed to present an approach of the current situation of the Costa Rican penitentiary system.
While acknowledging the gravity of the violations of fundamental rights of LGBTI people in prison, they are far from showing a systematic pattern of aggression or discrimination against those people. What they do indicate is a penitentiary system that reproduces and exacerbates the marginalization and discrimination experienced by these populations in society. Despite the implementation of some measures to meet the particular needs of these groups, there is also evidence of an institutional culture that tolerates and normalizes certain levels of verbal violence and non-lethal aggression perpetrated by some system staff and by other individuals deprived of liberty.
Visualize the discrimination faced by some of the most invisible prisoners in the penitentiary system. Highlight some of the challenges that might be addressed to protect the rights of certain groups of prisoners affected by structural discrimination provide key data to identify the task list that should be guiding the actions to strengthen human rights guarantees for LGBTI people in prison. Present some good practices implemented by the Costa Rican penitentiary system, which might be useful for some other countries of the region.
There is a lack of information in Latin America about the rights situation of people that, besides the imprisonment, faced some other conditions of vulnerability, such as gender identity or sexual orientation. In a region where overpopulation, precarious living conditions and the critical situation of the prisons are no longer news, this paper pretends to draw attention to the progress and challenges of the penitentiary system concerning some of the most marginalized people in prison. In that regard, this document constitutes also a way of vindication of their rights.