When consent doesn't work: a rights-based case for limits to consent’s capacity to legitimise

Consent's capacity to legitimise actions and claims is limited by conditions such as coercion, which render consent ineffective. A better understanding of the limits to consent's capacity to legitimise can shed light on a variety of applied debates, in political philosophy, bioethics, economics and law. I show that traditional paternalist explanations for limits to consent's capacity to legitimise cannot explain the central intuition that consent is often rendered ineffective when brought about by a rights violation or threatened rights violation. I argue that this intuition is an expression of the same principles of corrective justice that underlie norms of compensation and rectification. I show how these principles can explain and clarify core intuitions about conditions which render consent ineffective, including those concerned with the consenting agent's option set, his mental competence, and available information.

Care, disability and HIV in Africa: diverging or interconnected concepts and practices?

Recent research and policy have recognised the central role of unpaid care-givers (often women and girls) in the global South. Disability rights perspectives, however, challenge the language of ‘care’ and ‘dependence’. Drawing on qualitative research with women living with HIV and children caring for them in Tanzania, and on learning from the National Community of Women Living with HIV and AIDS in Uganda (NACWOLA), this paper explores the divergences and interconnections between the concepts and practices of care, disability and HIV in the context of East Africa. Despite the development of interdependent caring relations, both care-givers and people living with HIV in Tanzania experience ‘diminished autonomy’. The participation of people living with HIV, including disabled people, in home-based care and in peer support groups, however, can enhance ‘relational autonomy’ for both care-givers and care-recipients. We reflect on opportunities and challenges for mutual learning and cross-movement advocacy by disabled people, people living with HIV and care-givers.

Institutional capacity and implementation issues in farmers' rights

Armed with the ‘equity’ and ‘conservation’ arguments that have a deep resonance with farming communities, developing countries are crafting a range of measures designed to protect farmers’ access to innovations, reward their contributions to the conservation and enhancement of plant genetic resources and provide incentives for sustained on-farm conservation. These measures range from the commericialization of farmers’ varieties to the conferment of a set of legally enforceable rights on farming communities – the exercise of which is expected to provide economic rewards to those responsible for on-farm conservation and innovation. The rights-based approach has been the cornerstone of legislative provision for implementing farmers’ rights in most developing countries. In drawing up these measures, developing countries do not appear to have systematically examined or provided for the substantial institutional capacity required for the effective implementation of farmers’ rights provisions. The lack of institutional capacity threatens to undermine any prospect of serious implementation of these provisions. More importantly, the expectation that significant incentives for on-farm conservation and innovation will flow from these ‘rights’ may be based on a flawed understanding of the economics of intellectual property rights. While farmers’ rights may provide only limited rewards for conservation, they may still have the effect of diluting the incentives for innovative institutional breeding programs – with the private sector increasingly relying on non-IPR instruments to profit from innovation. The focus on a rights-based approach may also draw attention away from alternative stewardship-based approaches to the realization of farmers’ rights objectives.

Drug control, human rights, and the right to the highest attainable standard of health: a reply to Saul Takahashi

A recent article in this journal challenged claims that a human rights framework should be applied to drug control. This article questions the author’s assertions and reframes them in the context of socio-legal drug scholarship, aiming to build on the discourse concerning human rights and drug use. It is submitted that a rights-based approach is a necessary, indeed obligatory, ethical and legal framework through which to address drug use and that international human rights law provides the proper scope for determining where interferences with individual human rights might be justified on certain, limited grounds.

Human rights and mortgage repossession: beyond property law using Article 8

Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.

HIV care and interdependence in Tanzania and Uganda

Within many communities in East Africa, people living with HIV are increasingly involved in delivering home-based care and healthcare for family members and peers. Such interdependent caring relations blur conventional boundaries between ‘care-givers’ and ‘care-recipients’, and constructions of 'service users' as dependent, passive recipients of healthcare. The participation of people living with HIV in healthcare provision, home-based care and peer support groups can enhance ‘relational autonomy’ for both care-givers and care-recipients, although such initiatives often play out in highly gendered ways. The care and support of people living with HIV, particularly the emotion work of caring, however, continues to be associated with women's and girls' assumed 'natural' nurturing roles and has been largely devalued and overlooked in HIV policy and practice to date.

Children's caring roles and responsibilities within the family in Africa

In many Sub-Saharan African countries, the care of chronically ill, disabled or elderly relatives is usually regarded as the responsibility of family members, within a broader landscape of often overburdened healthcare systems, the expense of medical fees, very limited access to social protection and policies that emphasise home-based care. Recent studies have demonstrated that children and youth, particularly girls and young women, take on considerable caring roles for chronically ill and elderly relatives in Africa. This article reviews the available research on young people’s caring roles and responsibilities within families affected by chronic illness and disability in Sub-Saharan Africa. I discuss how children’s caring roles challenge global and local constructions of childhood and suggest ways of conceptualising the socio-spatial and embodied dimensions of children’s everyday care work within diverse household forms. I analyse evidence on outcomes of care and children’s resilience in managing their caring responsibilities and examine the complex array of processes that influence whether children take on caring roles within the family. I argue that relational, intergenerational and lifecourse approaches to researching children’s caring responsibilities within the family have considerable potential for future geographical research and could provide further insights into the ways that care is embedded in social relations, cultural norms and structural inequalities operating in different configurations in particular places.

A review of instruments developed to measure outcomes for carers of people with mental health problems

Objective: Community-based care for mental disorders places considerable burden on families and carers. Measuring their experiences has become a priority, but there is no consensus on appropriate instruments. We aimed to review instruments carers consider relevant to their needs and assess evidence for their use. Method: A literature search was conducted for outcome measures used with mental health carers. Identified instruments were assessed for their relevance to the outcomes identified by carers and their psychometric properties. Results: Three hundred and ninety two published articles referring to 241 outcome measures were identified, 64 of which were eligible for review (used in three or more studies). Twenty-six instruments had good psychometric properties; they measured (i) carers' well-being, (ii) the experience of caregiving and (iii) carers' needs for professional support. Conclusion: Measures exist which have been used to assess the most salient aspects of carer outcome in mental health. All require further work to establish their psychometric properties fully.

Field manual 3-24 and the heritage of counterinsurgency theory

The Counterinsurgency Manual FM 3-24 has been accused of being over-dependent on the counterinsurgency 'classics' Galula and Thompson. But comparison reveals that it is different in spirit. Galula and Thompson seek practical control; the Manual seeks to build 'legitimacy'. Its concept of legitimacy is superficially Weberian, but owes more to the writings of the American Max Manwaring. The Manual presupposes that a rights-based legal order can (other things being equal) be made to be cross-culturally attractive; 'effective governance' by itself can build legitimacy. The fusion of its methods with an ideology creates unrealistic criteria for success. Its weaknesses suggest a level of incapacity to think politically that will, in time, result in further failures.

Gendered struggles over land: shifting inheritance practices among the Serer in rural Senegal

Although women's land rights are often affirmed unequivocally in constitutions and international human rights conventions in many African countries, customary practices usually prevail on the ground and often deny women's land inheritance. Yet land inheritance often goes unnoticed in wider policy and development initiatives to promote women's equal access to land. This paper draws on feminist ethnographic research among the Serer ethnic group in two contrasting rural communities in Senegal. Through analysis of land governance, power relations and 'technologies of the self', this article shows how land inheritance rights are contingent on the specific effects of intersectionality in particular places. The contradictions of legal pluralism, greater adherence to Islam and decentralisation led to greater application of patrilineal inheritance practices. Gender, religion and ethnicity intersected with individuals' marital position, status, generation and socio-ecological change to constrain land inheritance rights for women, particularly daughters, and widows who had been in polygamous unions and who remarried. Although some women were aware that they were legally entitled to inherit a share of the land, they tended not to 'demand their rights'. In participatory workshops, micro-scale shifts in women's and men's positionings reveal a recognition of the gender discriminatory nature of customary and Islamic law and a desire to 'change with the times'. While the effects of 'reverse' discourses are ambiguous and potentially reinforce prevailing patriarchal power regimes, 'counter' discourses, which emerged in participatory spaces, may challenge customary practices and move closer to a rights-based approach to gender equality and women's land inheritance.

Participatory urban planning for climate change adaptation in coastal cities: lessons from a pilot experience in Maputo, Mozambique

This paper proposes a rights-based approach for participatory urban planning for climate change adaptation in urban areas. Participatory urban planning ties climate change adaptation to local development opportunities. Previous discussions suggest that participatory urban planning may help to understand structural inequalities, to gain, even if temporally, institutional support and to deliver a planning process in constant negotiation with local actors. Building upon an action research project which implemented a process of participatory urban planning for climate change in Maputo, Mozambique, this paper reflects upon the practical lessons that emerged from these experiences, in relation to the incorporation of climate change information, the difficulties to secure continued support from local governments and the opportunities for local impacts through the implementation of the proposals emerging from this process.

The experiences and priorities of young people who care for their siblings in Tanzania and Uganda

This report presents key findings from a small-scale pilot research project that explored the experiences and priorities of young people caring for their siblings in sibling-headed households affected by AIDS in Tanzania and Uganda. Qualitative and participatory research was conducted with 33 young people living in sibling-headed households and 39 NGO staff and community members in rural and urban areas of Tanzania and Uganda. The report analyses the ways that young people manage transitions to caring for their younger siblings following their parents’ death and the impacts of caring on their family relations, education, emotional wellbeing and health, social lives and their transitions to adulthood. The study highlights gendered- and age-related differences in the nature and extent of young people’s care work and discusses young people’s needs and priorities for action, based on the views of young people, NGO staff and community members. Meeting the basic needs of young people living in sibling-headed households, listening to young people’s views, fostering peer support and relationships of trust with supportive adults, raising awareness and advocacy emerge as key priorities to safeguard the rights of children and young people living in sibling-headed households and challenge the stigma and marginalisation they sometimes face.

Access, equity and the role of rights in health care

Modern health care rhetoric promotes choice and individual patient rights as dominant values. Yet we also accept that in any regime constrained by finite resources, difficult choices between patients are inevitable. How can we balance rights to liberty, on the one hand, with equity in the allocation of scarce resources on the other? For example, the duty of health authorities to allocate resources is a duty owed to the community as a whole, rather than to specific individuals. Macro-duties of this nature are founded on the notion of equity and fairness amongst individuals rather than personal liberty. They presume that if hard choices have to be made, they will be resolved according to fair and consistent principles which treat equal cases equally, and unequal cases unequally. In this paper, we argue for greater clarity and candour in the health care rights debate. With this in mind, we discuss (1) private and public rights, (2) negative and positive rights, (3) procedural and substantive rights, (4) sustainable health care rights and (5) the New Zealand booking system for prioritising access to elective services. This system aims to consider: individual need and ability to benefit alongside the resources made available to elective health services in an attempt to give the principles of equity practical effect. We describe a continuum on which the merits of those, sometimes competing, values-liberty and equity-can be evaluated and assessed.