Implementation of International Human Rights Law:
A Discourse Theoretical Study Illustrated by the Right to Family Planning in Indonesian Law
Datum för disputation: fredagen den 11 december 2009
Fakultetsopponent: fil.dr. Ida Elisabeth Koch, The Danish Institute for Human Rights
Ämne: mänskliga rättigheter
Discourse theory methodology provides an alternative and novel framework for human rights implementation as a topic of legal research. By conceptualising implementation of international human rights norms in a national legal context as a play of discourses competing for hegemony, it becomes possible to explore the workings of human rights constructions as well as where and how implementation fails or suceeds. This study offers an example of human rights implementation approached through discourse theory methodology, using the right to family planning in Indonesia as an illustrative case. Since the introduction in 1998 of the democratic reforms known as Reformasi, Indonesia has undergone significant legal reform, including in the field of human rights and family planning related law.
The right to family planning is constructed in the International Human Rights Domain by a discourse on sexual and reproductive health. In addition, it is given content and meaning by a discourse on autonomy, whereby the right to family planning is constructed as a right to make informed decisions on the number, spacing and timing of children, and to be free from violence and coercion. Through this construction, the right to family planning is established as an individual-based right, and women enjoy a special position hereto. In contrast, in the Indonesian Law Domain the right to family planning is constructed by a health discourse and a discourse on the prosperous family. The right to family planning is thus constructed as a health-related right, and a right to form and develop a prosperous family. The relevant subjects are primarily married individuals and family members. Individuals in their own capacity are thereby excluded by the discourses as rights-holders with respect to family planning. women are identified as the primary users of contraception, but decision-making rests equally with both spouses.
In the Reform Domain, as exemplified by draft Indonesian legislation, there are two dominating discourses that construct the right to family planning: one on reproductive health and one on the qualitative family. There is also an emerging discourse on autonomy. 'Reproductive rights' and 'reproductive health' are central to the reconstructed right to family planning. However, the discourses still position married persons as the relevant subjects and exclude unmarried persons as rights-holders. In conclusion, the right to family planning has become more inclusive in scope, but is still restricted in terms of who is considered relevant as a rights-holder.
Three main conclusions regarding human rights implementation can be drawn from this case study. First, the implementation process of international human rights norms into a national legal system is not as direct or uncomplicated as it is sometimes perceived in the modernity paradigm. Second, inclusion of key words or 'umbrella definitions' such as 'reproductive health' and 'reproductive rights', without the equivalence chain of the international human rights discourses, gives an impression of human rights implementation, but actually serves to mask the discrepancies between the construction in the International Human Rights Domain and the national domain. Because of their inclusiveness, umbrella definitions run the risk of becoming 'empty'. Third, this situation is made possible by, and due to, the construction of the right in the International Human Rights Domain itself. Hence, the present study illustrates how maximisation or proliferation of human rights does not necessarily serve its intended purpose of extending the scope of the right so as to benefit as many individuals as possible.
En studie av rättens risker och möjligheter med fokus på patientens ställning
Datum för disputation: fredagen den 25 september 2009
Fakultetsopponent: professor Kaarlo Touri, Helsingfors universitet, Finland
Ämne: allmän rättslära
A study of law’s hazards and potentials focusing on the legal position of the patient in healthcare
The aim of the present doctoral thesis is to study and conceptualize juridification as a phenomenon. This aim comprises analyzing the theories through which juridification as an empirical development is interpreted. In this thesis juridification signifies displacements towards legal discourse. Juridification comes about when an issue that was previously dealt with within a cultural, ethical, political, economical, or some other kind of discourse, begins to be, or to be more clearly or more often, treated as a legal matter. Juridification implies that discussions in some area of social life or discussions about a particular issue become, or become more often or more clearly, conducted through legal arguments and counter-arguments. In this thesis juridification also designates two processes that are closely related to displacements towards legal discourse. Through the first process a statute addresses a situation or an aspect of social life that was formerly not touched upon by laws or other statutes. Through the second a situation or an aspect of social life, which was previously not an object of judicial judgment or decision-making, becomes such an object. In order to make the phenomenon of juridification tangible the thesis works with a case of juridification, namely the juridification of the position of the patient in publicly financed healthcare.
Implementation of the AU Right of Intervention
Datum för disputation: tisdagen den 9 juni 2009
Fakultetsopponent: professor Nsongurua Udombana, Uyo universitet, Nigeria
This thesis explores the scope and limits of Article 4(h) of the AU Act in order to generate new thinking on, and contribute a fresh legal approach to, the implementation of the AU’s right to intervene under Article 4(h). While Article 4(h) intervention can be construed as enforcement by consent, it is not clear whether the UN Charter provides for enforcement action by consent to be outside the purview of Article 53(1) of the UN Charter. Thus, Article 4(h) intervention without authorisation of the UN Security Council faces legal challenges in view of Article 103 of the UN Charter and Article 53 of the Vienna Convention on the Law of Treaties, which stipulates that a treaty is void if, at the time of its conclusion, it conflicts with a jus cogens norm. However, Article 4(h) can be interpreted as a general a priori invitation in the form of a treaty-based intervention to prevent or halt mass atrocity crimes, which are of legitimate concern to the international community, and give rise to prosecution under the principle of universal jurisdiction. Nevertheless, measures to ensure the observance of the law in prospect, rather than intervention and penalisation of violations after the fact are worthwhile in preventing violations given the financial and institutional incapacity of the AU. Hence the need for ‘persuasive prevention’ to deter potential perpetrators and ensure compliance of human rights and humanitarian law obligations.
Tu Thanh Nguyen
Competition Law in Technology Transfer under the TRIPS Agreement
Implications for Developing Countries
Datum för disputation: onsdagen den 10 juni 2009
Fakultetsopponent: professor Jeffery Atik, Los Angeles, USA
The TRIPS Agreement allows WTO Members to enact and apply appropriate domestic competition law to address IPR-related anti-competitive practices. However, these flexibilities in the TRIPS Agreement do not provide any specific guidance for WTO Members. The application of domestic competition law to IPR abuses in technology transfer varies a great deal between developed and developing countries, and even among the developed countries themselves. The application requires the establishment of a sophisticated legal infrastructure. This is not a simple matter for developing countries. Intellectual property law allows for the creation of a market which welcomes innovation, the commercialization of such innovation, and technology transfer. Competition law then regulates this market. A strong intellectual property regime needs to be accompanied by strong competition rules. Developing countries generally under-enforce their competition legislation in this area, even though they are net importers of technology. They have to comply with high standards of intellectual property protection under the TRIPS Agreement, or even the TRIPS-plus standards. But they appear not to make use of the competition flexibilities in the TRIPS Agreement to promote access to technology and control anti-competitive conduct in inward technology transfer. Analyses of technology transfer-related competition law in developing countries in general, and Vietnam in particular, together with the experience of the US and the EU, provide useful insights. In principle, domestic competition law should be used to promote access to technology. Developing countries can reasonably apply and adapt relevant decisions and judgments from developed country jurisdictions to their own circumstances. While IPRs are globalized, technology transfer-related competition law should be glocalized suitably for the needs of local contexts. In this respect, developing countries should evaluate the obstacles, both internal and external, in order to select appropriate strategies. It must, however, be remembered that competition law is antitrust. It is neither anti-IPR nor anti-trade. Developing countries with limited competition law resources should set realistic priorities for the control of technology transfer-related anti-competitive practices. The focus should be on the areas of refusal to license, excessive pricing of technology-embodied products, tying, and use restrictions. At the international level, issues relating to technology transfer-related competition law, and competition law in general, should be on the agenda of a post-Doha negotiation round in the WTO.
Smugglingsbrott som ekonomisk och organiserad brottslighet
Rättspolitik - Rättsregler - Rättstillämpning
Datum för disputation: fredagen den 27 mars 2009
Fakultetsopponent: professor Raimo Lahti, Helsingfors universitet, Finland
Under vissa villkor får man föra in varor i Sverige utan att betala skatt eller anmäla varorna i tullen. Om varor förs in i landet i strid med villkoren kan det, i stället för skattefrihet, bli fråga om brott och straffrättsligt ansvar. Dessa skatte- och smugglingsbrott bedöms ibland som ekonomiska brott eller som organiserad brottslighet. Ekonomisk och organiserad brottslighet är begrepp som under lång tid varit föremål för såväl kriminalpolitisk debatt som kriminologisk diskussion. Slutsatsen är dock att de sällan används i enskilda domskäl.
I avhandlingen presenteras de regler som gäller för skatte- och smugglingsbrott som begås i samband med gränsöverskridande varutransaktioner liksom svenska domstolsavgöranden avseende dessa brott. Vidare redogörs för olika definitioner av begreppen ekonomisk och organiserad brottslighet och den omfattande kriminalpolitiska debatt och kriminologiska diskussion som har förts om dessa begrepp presenteras. Slutligen ges förslag på ett mer verklighetsanpassat begrepp än ekonomisk och organiserad brottslighet: MER ORGANISERAD BROTTSLIGHET. I detta begrepp värderas inte omfattningen av brottsligheten i fråga. Begreppet kan användas för att beteckna brottslighet som är mer eller bättre organiserad än vardagsbrott.
The point of departure of the dissertation is crime committed when doing cross-border transactions concerning otherwise legal products. The crimes in focus are such which can be described as more organised than everyday crime – but not as organised as required by the widely used and discussed concept of organised crime. From there, a discussion, based on criminal politics, criminal law, crime and Swedish court decisions in smuggling and tax crime cases is held, with the definitions and concepts of economic and organised crime in focus. As a conclusion, neither extracts from the debate in criminology and criminal politics nor from preparatory works concerning economic or organised crime are, to any significant extent, visible in the judgements and court decisions examined. As for the principle of equal treatment in criminal matters, as well as for questions of rule of law, this is positive; the aim of the criminal procedure is not to put criminality in context but to examine if a certain crime has been committed.