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    The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushed state obligations to counter prejudice and stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society. The recognition dimension of inclusive equality, together with the CRPD’s provisions on awareness raising, mandates that states parties target prejudice and stereotypes about the capabilities and contributions of persons with disabilities to society. Certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women, require states to eradicate harmful stereotypes and prejudice about people with disabilities in various forms of interpersonal relationships. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights. This article assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations requiring states to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations to eliminate prejudice and stereotypes in interpersonal relationships. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to those obligations.


Andrea Broderick
Andrea Broderick is Assistant Professor at the Universiteit Maastricht, the Netherlands.

Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.

    In a recent Supreme Court decision, it was held by a 4-1 majority that there is no reason, in principle, why the provision of ‘reasonable accommodation’ for an employee with a disability should not involve the redistribution of duties.


Orla O’Leary
Orla O’Leary is an attorney-at-law at Mason Hayes & Curran, Dublin.
Human Rights Practice Reviews

Albania

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Anisia Mandro LLM
Author's information

Anisia Mandro LLM
Anisia Mandro (European Union Law - LLM), Legal Researcher and Legal Adviser in the area of competition law, data protection, and human rights; Consultant in approximation of national legislation with EU acquis Communautaire.
Article

Access_open A changing paradigm of protection of vulnerable adults and its implications for the Netherlands

Journal Family & Law, February 2019
Authors H.N. Stelma-Roorda LLM MSc, dr. C. Blankman and prof. dr. M.V. Antokolskaia
AbstractAuthor's information

    The perception of how the interests of vulnerable adults should be protected has been changing over time. Under the influence of human and patient’s rights a profound shift of protection paradigms has taken place in the last decades. In the framework of this shift, in addition to traditional adult guardianship measures, new instruments have been developed allowing adults to play a greater role in the protection of their (future) interests. This has also been the case in the Netherlands, where adults in the course of the last decade have acquired the possibility to make a so-called living will, internationally better known as a continuing, enduring or lasting power of attorney. This article discusses this instrument, in comparison with the traditional adult guardianship measures currently in force in the Netherlands, from the perspective of the new protection paradigm based on a human rights approach.
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    In de afgelopen decennia is de manier waarop naar de bescherming van kwetsbare meerderjarigen wordt gekeken, veranderd. Van een benadering waarbij de focus voornamelijk lag op bescherming is de nadruk steeds meer komen te liggen op het recht op autonomie en zelfbeschikking van de meerderjarige. De opkomst van mensen- en patiëntenrechten heeft geleid tot het ontstaan van een nieuw beschermingsparadigma. In dat kader zijn nieuwe instrumenten ontwikkeld, die meerderjarigen een grotere rol toekennen in de bescherming van hun (toekomstige) belangen. Dit is eveneens het geval in Nederland, waar meerderjarigen een levenstestament kunnen opstellen om voorzieningen te treffen voor een toekomstige periode van wilsonbekwaamheid. Dit artikel bespreekt het levenstestament, in samenhang met de traditionele rechterlijke beschermingsmaatregelen, vanuit het perspectief van het nieuwe beschermingsparadigma.


H.N. Stelma-Roorda LLM MSc
Rieneke Stelma-Roorda is PhD candidate at the Vrije Universiteit Amsterdam.

dr. C. Blankman
Kees Blankman is associate professor at the Vrije Universiteit Amsterdam.

prof. dr. M.V. Antokolskaia
Masha Antokolskaia is professor of family law at the Vrije Universiteit Amsterdam.
Article

Legislative Reform in Post-Conflict Settings

A Practitioner’s View

Journal European Journal of Law Reform, Issue 1 2019
Keywords post-conflict, rule of law, law reform, legislative reform
Authors Nathalia Berkowitz
AbstractAuthor's information

    Following conflict, considerable effort is often dedicated to legislative reform. This effort includes not only domestic actors but also international actors frequently acting with the aim of establishing the rule of law. This article seeks, first, to provide some context for legislative reform in post-conflict settings and outline some of the criticisms that have been made. Drawing on the work of legislative experts, the article then identifies some of the simple questions that those involved in legislative reform ask and discusses some of the key challenges in answering them. The article suggests that establishing the rule of law is more than putting laws ‘on the books’ and that the way in which legislation is created may itself contribute to developing the rule of law. It suggests that as the rule-of-law community develops new approaches, it might find it useful to draw on the approach of legislative experts and their concern with how effective legislation is created.


Nathalia Berkowitz
Nathalia Berkowitz is a former Barrister and legislative drafter working as an independent consultant focusing on rule of law reform. Nathalia has over 10 years’ experience supporting legislative reform and judicial process in countries around the world. She is a UK [Government] deployable civilian expert and faculty member of the University of Salamanca’s Global and International Studies Program. She can be contacted at nathaliapendo@gmail.com.

    The comparative discussions held during this seminar show that the different jurisdictions make use of – approximately – the same ingredients for their legislation on adult guardianship measures and continuing powers of attorney. Given the common international framework (for example the UN Convention on the Rights of Persons with Disabilities) and given the common societal context (cfr. the strong increase of the ageing population) this may not come as a surprise. Despite these common ingredients, the different jurisdictions have managed to arrive at different dishes spiced with specific local flavours. Given that each jurisdiction bears its own history and specific policy plans, this may not come as a surprise either. The adage ‘same same but different’ is in this respect a suitable bromide.
    For my own research, the several invitations – that implicitly or explicitly arose from the different discussions – to rethink important concepts or assumptions were of most relevance and importance. A particular example that comes to mind is the suggestion to ‘reverse the jurisprudence’ and to take persons with disabilities instead of healthy adult persons as a point of reference. Also, the invitation to rethink the relationship between the limitation of capacity and the attribution of a guard comes to mind as the juxtaposition of the different jurisdictions showed that these two aspects don’t need to be automatically combined. Also the discussion on the interference between the continuing powers of attorney and the supervision by the court, provoked further reflection on hybrid forms of protection on my part. Finally, the ethical and medical-legal approaches may lead to a reconsideration of the traditional underlying concepts of autonomy and the assessment of capacity.


Veerle Vanderhulst Ph.D.
Veerle Vanderhulst works at the Faculty of Law and Criminology, Vrije Universiteit Brussel
Article

Access_open The Right to Mental Health in the Digital Era

Journal Erasmus Law Review, Issue 3 2016
Keywords E-health, e-mental health, right to health, right to mental health
Authors Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj
AbstractAuthor's information

    People with mental illness usually experience higher rates of disability and mortality. Often, health care systems do not adequately respond to the burden of mental disorders worldwide. The number of health care providers dealing with mental health care is insufficient in many countries. Equal access to necessary health services should be granted to mentally ill people without any discrimination. E-mental health is expected to enhance the quality of care as well as accessibility, availability and affordability of services. This paper examines under what conditions e-mental health can contribute to realising the right to health by using the availability, accessibility, acceptability and quality (AAAQ) framework that is developed by the Committee on Economic, Social and Cultural Rights. Research shows e-mental health facilitates dissemination of information, remote consultation and patient monitoring and might increase access to mental health care. Furthermore, patient participation might increase, and stigma and discrimination might be reduced by the use of e-mental health. However, e-mental health might not increase the access to health care for everyone, such as the digitally illiterate or those who do not have access to the Internet. The affordability of this service, when it is not covered by insurance, can be a barrier to access to this service. In addition, not all e-mental health services are acceptable and of good quality. Policy makers should adopt new legal policies to respond to the present and future developments of modern technologies in health, as well as e-Mental health. To analyse the impact of e-mental health on the right to health, additional research is necessary.


Fatemeh Kokabisaghi
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Iris Bakx
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Blerta Zenelaj
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.
Article

Regulating Genetic Discrimination in the European Union

Pushing the EU into Unchartered Territory or Ushering in a New Genomic Era?

Journal European Journal of Law Reform, Issue 1 2015
Keywords genetics, regulation, discrimination, data protection, European Union
Authors Aisling de Paor and Delia Ferri
AbstractAuthor's information

    Against the backdrop of rapid developments in genetic science and technology, one of the main concerns arising in this area is the potential use of genetic testing to discriminate, especially in the employment and insurance contexts. Employers and insurance companies may use the results of genetic tests to discriminate (primarily for economic advantage), based on perceptions of future health risks or future disabilities. This article explores the scope for an EU to effectively address genetic discrimination and the misuse of genetic information. It first provides a theoretical overview of the choice of regulatory frameworks. It then examines the scope and protection of current non- discrimination laws in the EU and investigates the possibility of an EU level response to address the misuse of genetic information.


Aisling de Paor
BCL, LLM, PhD, Solicitor (Law Society of Ireland) – Lecturer in Law, Dublin City University.

Delia Ferri
LLM, PhD in European and Italian constitutional law, Attorney at Law registered at the Verona Bar (Italy) – Lecturer in Law, National University of Ireland Maynooth.

Delia Ferri
Dr. in European and Italian Constitutional Law (University of Verona), Registered Attorney at Law (Verona Bar)
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