O reconhecimento da diferença como garantia da igualdade para afirmação do direito e da identidade da mulher

Tese (doutorado)—Universidade de Brasília, Faculdade de Direito, Programa de Pós-Graduação em Direito, 2016.

A ‘right to have rights’ in the EU public sphere? An Arendtian justification for the application of the EU Charter of Fundamental Rights

This paper discusses the Court’s reasoning in interpreting the EU Charter, using recent case law on horizontal effect as a case study. It identifies two possible means of interpreting the provisions of the Charter: firstly, an approach based on common values (e.g. equality or solidarity) and, secondly, an approach based on access to the public sphere. It argues in favour of the latter. Whereas an approach based on common values is more consonant with the development of the case law so far, it is conceptually problematic: it involves subjective assessments of the importance and degree of ‘sharedness’ of the value in question, which can undermine the equal constitutional status of different Charter provisions. Furthermore, it marginalises the Charter’s overall politically constructional character, which distinguishes it from other sources of rights protection listed in Art 6 TEU. The paper argues that, as the Charter’s provisions concretise the notion of political status in the EU, they have a primarily constitutional, rather than ethical, basis. Interpreting the Charter based on the very commitment to a process of sharing, drawing on Hannah Arendt’s idea of the ‘right to have rights’ (a right to access a political community on equal terms), is therefore preferable. This approach retains the pluralistic, post-national fabric of the EU polity, as it accommodates multiple narratives about its underlying values, while also having an inclusionary impact on previously underrepresented groups (e.g. non-market-active citizens or the sans-papiers) by recognising their equal political disposition.

The Impact of Cooperation on Defendants' Rights before the ICC: A Contextual Approach

The present study locates the challenges faced by defendants during cooperation proceedings in the context of the unique structural system of the Court, and the inherent tensions and limitations that characterize the ICC’s functioning. The study is divided into two parts. The first part sets out the institutional and jurisdictional context in which cooperation plays out at the ICC. Chapter 2 addresses the ICC dependence on cooperation from an institutional, a political and a normative dimension, showing that compliance with requests for cooperation is ultimately tied to State political willingness and international political pressure; Chapter 3 delves into the connection between cooperation and the complementary jurisdiction of the Court, criticising the ‘positive approach’ to complementarity endorsed by the Prosecutor in order to enhance states cooperation. The second part of the study addresses the impact that cooperation occurring in the above-explained context has on the right to liberty of defendants and on equality of arms. Chapter 4 and 5 analyse the ICC’s law protecting the selected rights, as well as the practice regarding allegations of violations of these rights brought forward by some defendants. It concludes that, so far, the organs of the Court (i.e., the Prosecutor and the judges) have failed to engage with the structural tensions and limitations of the Court with a view of protecting the rights of suspects and accused.

The failure of Australian legislation on indirect discrimination to detect the systemic racism which prevents Aboriginal people from fully participating in the workforce

Government figures put the current indigenous unemployment rate at around 23%, 3 times the unemployment rate for other Australians. This thesis aims to assess whether Australian indirect discrimination legislation can provide a remedy for one of the causes of indigenous unemployment - the systemic discrimination which can result from the mere operation of established procedures of recruitment and hiring. The impact of those practices on indigenous people is examined in the context of an analysis of anti-discrimination legislation and cases from all Australian jurisdictions from the time of the passing of the Racial Discrimination Act by the Commonwealth in 1975 to the present. The thesis finds a number of reasons why the legislation fails to provide equality of opportunity for indigenous people seeking to enter the workforce. In nearly all jurisdictions it is obscurely drafted, used mainly by educated middle class white women, and provides remedies which tend to be compensatory damages rather than change to recruitment policy. White dominance of the legal process has produced legislative and judicial definitions of "race" and "Aboriginality" which focus on biology rather than cultural difference. In the commissions and tribunals complaints of racial discrimination are often rejected on the grounds of being "vexatious" or "frivolous", not reaching the required standard of proof, or not showing a causal connection between race and the conduct complained of. In all jurisdictions the cornerstone of liability is whether a particular employment term, condition or practice is reasonable. The thesis evaluates the approaches taken by appellate courts, including the High Court, and concludes that there is a trend towards an interpretation of reasonableness which favours employer arguments such as economic rationalism, the maintenance of good industrial relations, managerial prerogative to hire and fire, and the protection of majority rights. The thesis recommends that separate, clearly drafted legislation should be passed to address indigenous disadvantage and that indigenous people should be involved in all stages of the process.

A communitarian theory of the education rights of students with disabilities

There is a lack of writing on the issue of the education rights of people with disabilities by authors of any theoretical persuasion. While the deficiency of theory may be explained by a variety of historical, philosophical and practical considerations, it is a deficiency which must be addressed. Otherwise, any statement of rights rings out as hollow rhetoric unsupported by sound reason and moral rectitude. This paper attempts to address this deficiency in education rights theory by postulating a communitarian theory of the education rights of people with disabilities. The theory is developed from communitarian writings on the role of education in democratic society. The communitarian school, like the community within which it nests, is inclusive. Schools both reflect and model the shape of communitarian society and have primary responsibility for teaching the knowledge and virtues which will allow citizens to belong to and function within society. Communitarians emphasise responsibilities, however, as the corollary of rights and require the individual good to yield to community good when the hard cases arise. The article not only explains the basis of the right to an inclusive education, therefore, but also engages with the difficult issue of when such a right may not be enforceable.

The discursive nature of citizenship : Indigenous sovereign rights, racism and welfare reform

Citizenship is more than a status associated with a bundle of rights; it is also the formal contract by which the sovereignty of a nation is extended to the individual in exchange for being governed. Who can and who cannot contract into this status and what rights are able to be exercised is also shaped by who possesses the nation. In this article it is argued that citizenship operates discursively to contain Indigenous people’s engagement with the economy through social rights. This containment precludes consideration of Indigenous sovereign rights to our lands and resources, to enable Indigenous economic development within a capitalist market economy.

Devolution of forest-related rights: Comparative analyses of six developing countries

The study focused on the different ways that forest-related rights can be devolved to the local level according to the current legal frameworks in Laos, Nepal, Vietnam, Kenya, Mozambique and Tanzania. The eleven case studies represented the main ways in which forest-related rights can be devolved to communities or households in these countries. The objectives of this study were to 1) analyse the contents and extent of forest-related rights that can be devolved to the local level, 2) develop an empirical typology that represents the main types of devolution, and 3) compare the cases against a theoretical ideal type to assess in what way and to what extent the cases are similar to or differ from the theoretical construct. Fuzzy set theory, Qualitative Comparative Analysis and ideal type analysis were used in analysing the case studies and in developing an empirical typology. The theoretical framework, which guided data collection and analyses, was based on institutional economics and theories on property rights, common pool resources and collective action. On the basis of the theoretical and empirical knowledge, the most important attributes of rights were defined as use rights, management rights, exclusion rights, transfer rights and the duration and security of the rights. The ideal type was defined as one where local actors have been devolved comprehensive use rights, extensive management rights, rights to exclude others from the resource and rights to transfer these rights. In addition, the rights are to be secure and held perpetually. The ideal type was used to structure the analysis and as a tool against which the cases were analysed. The contents, extent and duration of the devolved rights varied greatly. In general, the results show that devolution has mainly meant the transfer of use rights to the local level, and has not really changed the overall state control over forest resources. In most cases the right holders participate, or have a limited role in the decision making regarding the harvesting and management of the resource. There was a clear tendency to devolve the rights to enforce rules and to monitor resource use and condition more extensively than the powers to decide on the management and development of the resource. The empirical typology of the cases differentiated between five different types of devolution. The types can be characterised by the devolution of 1) restricted use and control rights, 2) extensive use rights but restricted control rights, 3) extensive rights, 4) insecure, short term use and restricted control rights, and 5) insecure extensive rights. Overall, the case studies conformity to the ideal type was very low: only two cases were similar to the ideal type, all other cases differed considerably from the ideal type. The restricted management rights were the most common reason for the low conformity to the ideal type (eight cases). In three cases, the short term of the rights, restricted transfer rights, restricted use rights or restricted exclusion rights were the reason or one of the reasons for the low conformity to the ideal type. In two cases the rights were not secure.

Conrad Summenhart's theory of individual rights and its medieval background

This study focuses on the theory of individual rights that the German theologian Conrad Summenhart (1455-1502) explicated in his massive work Opus septipartitum de contractibus pro foro conscientiae et theologico. The central question to be studied is: How does Summenhart understand the concept of an individual right and its immediate implications? The basic premiss of this study is that in Opus septipartitum Summenhart composed a comprehensive theory of individual rights as a contribution to the on-going medieval discourse on rights. With this rationale, the first part of the study concentrates on earlier discussions on rights as the background for Summenhart s theory. Special attention is paid to language in which right was defined in terms of power . In the fourteenth century writers like Hervaeus Natalis and William Ockham maintained that right signifies power by which the right-holder can to use material things licitly. It will also be shown how the attempts to describe what is meant by the term right became more specified and cultivated. Gerson followed the implications that the term power had in natural philosophy and attributed rights to animals and other creatures. To secure right as a normative concept, Gerson utilized the ancient ius suum cuique-principle of justice and introduced a definition in which right was seen as derived from justice. The latter part of this study makes effort to reconstructing Summenhart s theory of individual rights in three sections. The first section clarifies Summenhart s discussion of the right of the individual or the concept of an individual right. Summenhart specified Gerson s description of right as power, taking further use of the language of natural philosophy. In this respect, Summenhart s theory managed to bring an end to a particular continuity of thought that was centered upon a view in which right was understood to signify power to licit action. Perhaps the most significant feature of Summenhart s discussion was the way he explicated the implication of liberty that was present in Gerson s language of rights. Summenhart assimilated libertas with the self-mastery or dominion that in the economic context of discussion took the form of (a moderate) self-ownership. Summenhart discussion also introduced two apparent extensions to Gerson s terminology. First, Summenhart classified right as relation, and second, he equated right with dominion. It is distinctive of Summenhart s view that he took action as the primary determinant of right: Everyone has as much rights or dominion in regard to a thing, as much actions it is licit for him to exercise in regard to the thing. The second section elaborates Summenhart s discussion of the species dominion, which delivered an answer to the question of what kind of rights exist, and clarified thereby the implications of the concept of an individual right. The central feature in Summenhart s discussion was his conscious effort to systematize Gerson s language by combining classifications of dominion into a coherent whole. In this respect, his treatement of the natural dominion is emblematic. Summenhart constructed the concept of natural dominion by making use of the concepts of foundation (founded on a natural gift) and law (according to the natural law). In defining natural dominion as dominion founded on a natural gift, Summenhart attributed natural dominion to animals and even to heavenly bodies. In discussing man s natural dominion, Summenhart pointed out that the natural dominion is not sufficiently identified by its foundation, but requires further specification, which Summenhart finds in the idea that natural dominion is appropriate to the subject according to the natural law. This characterization lead him to treat God s dominion as natural dominion. Partly, this was due to Summenhart s specific understanding of the natural law, which made reasonableness as the primary criterion for the natural dominion at the expense of any metaphysical considerations. The third section clarifies Summenhart s discussion of the property rights defined by the positive human law. By delivering an account on juridical property rights Summenhart connected his philosophical and theological theory on rights to the juridical language of his times, and demonstrated that his own language of rights was compatible with current juridical terminology. Summenhart prepared his discussion of property rights with an account of the justification for private property, which gave private property a direct and strong natural law-based justification. Summenhart s discussion of the four property rights usus, usufructus, proprietas, and possession aimed at delivering a detailed report of the usage of these concepts in juridical discourse. His discussion was characterized by extensive use of the juridical source texts, which was more direct and verbal the more his discussion became entangled with the details of juridical doctrine. At the same time he promoted his own language on rights, especially by applying the idea of right as relation. He also showed recognizable effort towards systematizing juridical language related to property rights.

Nationalism Circumscribed : Transnational Governance of Minority Rights in Post-Cold War Europe

For the past two centuries, nationalism has been among the most influential legitimizing principles of political organization. According to its simple definition, nationalism is a principle or a way of thinking and acting which holds that the world is divided into nations, and that national and political units should be congruent. Nationalism can thus be divided into two aspects: internal and external. Internally, the political units, i.e., states, should be made up of only one nation. Externally each nation-state should be sovereign. Transnational national governance of rights of national minorities violates both these principles. This study explores the formation, operation, and effectiveness of the European post-Cold War minorities system. The study identifies two basic approaches to minority rights: security and justice. These approaches have been used to legitimize international minority politics and they also inform the practice of transnational governance. The security approach is based on the recognition that the norm of national self-determination cannot be fulfilled in all relevant cases, and so minority rights are offered as a compensation to the dissatisfied national groups, reducing their aspiration to challenge the status quo. From the justice perspective, minority rights are justified as a compensatory strategy against discrimination caused by majority nation-building. The research concludes that the post-Cold War minorities system was justified on the basis of a particular version of the security approach, according to which only Eastern European minority situations are threatening because of the ethnic variant of nationalism that exists in that region. This security frame was essential in internationalising minority issues and justifying the swift development of norms and institutions to deal with these issues. However, from the justice perspective this approach is problematic, since it justified double standards in European minority politics. Even though majority nation-building is often detrimental to minorities also in Western Europe, Western countries can treat their minorities more or less however they choose. One of the main contributions of this thesis is the detailed investigation of the operation of the post-Cold War minorities system. For the first decade since its creation in the early 1990s, the system operated mainly through its security track, which is based on the field activities of the OSCE that are supported by the EU. The study shows how the effectiveness of this track was based on inter-organizational cooperation in which various transnational actors compensate for each other s weaknesses. After the enlargement of the EU and dissolution of the membership conditionality this track, which was limited to Eastern Europe from the start, has become increasingly ineffective. Since the EU enlargement, the focus minorities system has shifted more and more towards its legal track, which is based on the Framework Convention for the Protection of National Minorities (Council of Europe). The study presents in detail how a network of like-minded representatives of governments, international organizations, and independent experts was able strengthen the framework convention s (originally weak) monitoring system considerably. The development of the legal track allows for a more universal and consistent, justice-based approach to minority rights in contemporary Europe, but the nationalist principle of organization still severely hinders the materialization of this possibility.

An Analysis of the Concept of Citizenship: Legal, Political and Social Dimensions

The thesis aims at analyzing concept of citizenship in political philosophy. The concept of citizenship is a complex one: it does not have a definitive explication, but it nevertheless is a very important category in contemporary world. Citizenship is a powerful ideal, and often the way a person is treated depends on whether he or she has the status of a citizen. Citizenship includes protection of a person’s rights both at home and abroad. It entails legal, political and social dimension: the legal status as a full member of society, the recognition of that status by fellow citizens and acting as a member of society. The thesis discusses these three dimensions. Its objective is to show how all of them, despite being insufficient in some aspects, reach something important about the concept. The main sources of the thesis are Civic Republicanism by Iseult Honohan (Routledge 2002), Republicanism by Philip Pettit (Clarendon Press 1997), and Taking Rights Seriously by Ronald Dworkin (1997). In addition, the historical part of the thesis relies mainly on the works of Aristotle, Immanuel Kant, Adam Smith, Quentin Skinner, James Pocock and James Tully. The writings of Will Kymlicka, John Rawls, Chantal Mouffe, and Shane Phelan are referred to in the presentation and critique of the liberal tradition of thought. Hannah Arendt and Seyla Benhabib’s analysis of Arendt’s philosophy both address the problematic relations between human rights and nation-states as the main guarantors of rights. The chapter on group rights relies on Peter Jones’ account of corporate and collective rights, after which I continue to Seumas Miller’s essay on the (liberal) account of group rights and their relation to the concept of citizenship. Republicanism and Political Theory (2002) edited by Cécile Laborde and John Maynor is also references. David Miller and Maurizio Viroli represent the more “rooted” version of republicanism. The thesis argues that the full concept of citizenship should be seen as containing legal, political and social dimensions. The concept can be viewed from all of these three angles. The first means that citizenship is connected with certain rights, like the right to vote or stand for election, the right to property and so on. In most societies, the law guarantees these rights to every citizen. Then there is also the social dimension, which can be said to be as important as the legal one: the recognition of equality and identities of others. Finally, there is the political dimension, meaning the importance of citizens’ participation in the society, which is discussed in connection with the contemporary account of republicanism. All these issues are discussed from the point of view of groups demanding for group-specific rights and equal recognition. The challenge with these three aspects of citizenship is, however, that they are difficult to discuss under one heading. Different theories or discourses of citizenship each approach the subject from different starting points, which make reconciling them sometimes hard. The fundamental questions theories try to answer may differ radically depending on the theory. Nevertheless, in order to get the whole image of what the citizenship discourses are about all the aspects deserve to be taken into account.

Application of uniform design and genetic algorithm in optimization of reversed-phase chromatographic separation

An optimization method based on uniform design in conjunction with genetic algorithm is described. According to the proposed method, the uniform design technique was applied to the design of starting experiments, which can reduce the number of experiments compared with traditional simultaneous methods, such as simplex. And genetic algorithm was used in optimization procedure, which can improve the rapidity of optimal procedure. The hierarchical chromatographic response function was modified to evaluate the separation equality of a chromatogram. An iterative procedure was adopted to search for the optimal condition to improve the accuracy of predicted retention and the quality of the chromatogram. The optimization procedure was tested in optimization of the chromatographic separation of 11 alkaloids in reversed-phase ion pair chromatography and satisfactory optimal result was obtained. (C) 2003 Elsevier B.V. All rights reserved.

A study of the extent to which Irish law, policy and practice allow for Ireland's application of the United Nations Convention on the Rights of the Child, 1989 to pre-natal children

The central research question of this thesis asks the extent to which Irish law, policy and practice allow for the application of the United Nations Convention on the Rights of the Child (CRC) to pre-natal children. First, it is demonstrated that pre-natal children can fall within the definition of ‘child’ under the Convention and so the possibility of applying the Convention to children before birth is opened. Many State Parties to the CRC have interpreted it as applicable to pre-natal children, while others have expressed that it only applies from birth. Ireland has not clarified whether or not it interprets it as being applicable from conception, birth, or some other point. The remainder of the thesis examines the extent to which Ireland interprets the CRC as applicable to the pre-natal child. First, the question of whether Ireland affords to the pre-natal child the right to life under Article 6(1) of the Convention is analysed. Given the importance of the indivisibility of rights under the Convention, the extent to which Ireland applies other CRC rights to pre-natal children is examined. The rights analysed are the right to protection from harm, the right to the provision of health care and the procedural right to representation. It is concluded that Ireland’s laws, policies and practices require urgent clarification on the issue of the extent to which rights such as protection, health care and representation apply to children before birth. In general, there are mixed and ad hoc approaches to these issues in Ireland and there exists a great deal of confusion amongst those working on the frontline with such children, such as health care professionals and social workers. The thesis calls for significant reform in this area in terms of law and policy, which will inform practice.

[Book review] Rights of the Accused, Crime Control and Protection of Victims

Review of: Rights of the Accused, Crime Control and Protection of Victims. Edited by Eliahu Harnon & Alex Stein. A special volume of the Israel Law Review, Vol. 31, Nos. 1-3, Winter-Summer 1997. Published by the Faculty of Law, Hebrew University, Jerusalem.