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Dissertations / Theses on the topic 'Article 8 of the Convention'
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Hughes, K. E. "A behavioural understanding of privacy : Article 8 European Convention on Human Rights and a right to respect for barriers." Thesis, University of Cambridge, 2010. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.604730.
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To develop effective privacy laws we need to have a thorough understanding of privacy. The thesis addresses four questions: (i) how should we identify the interests that should be protected by a right to privacy? (ii) Does everyone have the same need for privacy? (iii) What constitutes a privacy experience? (iv) What values and functions does privacy serve? This leads to an understanding of privacy which draws upon studies of human behaviour and social interaction. The right can be understood as a claim that barriers used to prevent access should be respected: <i>For X to have a right to privacy against Y is for X to have a claim against Y that Y not access X by breaching a barrier used by X to prevent Y from accessing X.</i> The remainder of the thesis analyses Article 8 European Convention on Human Rights through this theoretical framework. There are four dimensions to this analysis: scope; needs; states; and value. <i>Scope</i> refers to the match between Article 8 ECHR and the above model. Analysis of ‘<i>need</i>’ concentrates on interests of women and children in relation to privacy, helping to identify the normative core of the right and its limits. Analysis of ‘<i>state</i>’ considers the extent to which three types of privacy experiences are recognised: (i) physical separation; (ii) group privacy; and (iii) public privacy. ‘<i>Value</i>’ refers to the perceived significance of the right when it conflicts with other interests and rights. Finally, the thesis concludes with a consideration of the need for legislative intervention.
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Ramshaw, Adam. "The role of Article 8 of the European Convention on Human Rights in public and private sector possession proceedings." Thesis, Northumbria University, 2016. http://nrl.northumbria.ac.uk/36013/.
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This thesis is concerned with the legal shortcomings flowing from Manchester City Council v Pinnock.1 Following Pinnock tenants of local authorities may have the proportionality of a possession order considered by the court in light of art.8 of the European Convention on Human Rights and the Human Rights Act 1998. However, there are questions outstanding from Pinnock. Firstly, there has been a failure within the courts to appreciate the importance of the home to the individual, their family, and society in general. Secondly, domestic courts have not provided adequate reasons for limiting art.8 to proceedings involving a local authority. Thirdly, the nature of proportionality within possession proceedings has been poorly conceived thereby marginalising art.8’s effects. This thesis draws support from philosophical and sociological literature to illustrate the deep connection a person feels towards their home. These connections exist irrespective of ownership yet it is these non-legal interests which are often overlooked by the courts. It is argued here that art.8 may protect these non-legal interests. Further, this thesis questions why art.8’s protection ought to be limited to proceedings involving a public sector landlord. The thesis provides an overview of the competing theories concerning horizontal effect and their related shortcomings. The work of Alexy is used to argue that horizontal effect is a singular phenomenon thereby making art.8 applicable in private proceedings. The public/private divide is then critiqued to demonstrate the theoretical viability of horizontal effect where a person’s home is at risk. The final strand of this thesis is concerned with how the competing interests of landlords and tenants may be adjudged. To this end a structured proportionality model is developed to replace the general proportionality exercise utilised by the courts following Pinnock. This proportionality model is then applied to existing case law to demonstrate its viability and context sensitivity.
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Havelková, Lenka. "Článek 8 Evropské úmluvy o ochraně lidských práv." Master's thesis, Vysoká škola ekonomická v Praze, 2013. http://www.nusl.cz/ntk/nusl-192521.
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This thesis bearing the name "The European Convention on Human Rights, Article 8" has the objective to define the right to respect for private and family life through the jurisprudence of the European Court of Human Rights. The work is concentrating on the topic of registered partnership, especially upon the question of whether a homosexual pair can be recognized as a family in the sense of Article 8 of European Convention on Human Rights. Further issues discussed are the question of children and their biological parents, whether a child has a right to know his biological parents, and the problem of implementation of Article 8 in the Czech Republic focusing on the question of problems in implementation of the right to respect for private life and for family life. The first two chapters are aimed at defining the pertinent terms and outlining the historical development of this area of law. Main part of the work are the last two chapters, which are concentrating on the above mentioned issues through the interpretation of selected relevant jurisprudence of the European Court of Human Rights. This interpretation of the jurisprudence has resulted in answers on the set questions, with respect to the fact that it is a current interpretation of the Convention by the Court. The main finding is the necessity to realize that the Convention as a living instrument will keep developing according to the development of society, which leads to the results and answers being pertinent only at the time of writing of this work, with the future development being possibly different from current results.
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Tassone, Loredana. "La protection européenne des données à caractère personnel traitées à des fins judiciaires." Thesis, Strasbourg, 2013. http://www.theses.fr/2013STRAA028.
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Dans notre société que l’on peut appeler «société de l’information » ou également société de « surveillance électronique », il est désormais essentiel d’assurer la protection de données à caractère personnel. La mise en place d’une réglementation en matière de protection de données n’a pas toujours été aisée et, dans certains domaines, demeure complexe. Le domaine judiciaire est un exemple marquant de secteur d’activité où il a été difficile de mettre en place des règles spécifiques et appropriées pour la protection de données personnelles. Dans les années quatre-vingt-dix, la question s’était posée de savoir si une protection spécifique des données traitées à des fins judiciaires était nécessaire. Les conclusions avaient été diverses : d’un côté, certains avaient estimé qu’une réglementation spécifique était opportune, d’un autre côté, d’autres considéraient que l’idée de mettre en place une telle réglementation devait être abandonnée. Cette étude semble avoir été – à un certain point – abandonnée. Compte tenu de l’évolution des technologies et de l’évolution des textes européens, il semble essentiel de poser à nouveau cette question et de s’interroger sur la place à conférer aux données traitées à des fins judiciaires dans le système européen actuel de protection de données à caractère personnel. Cette nécessité est corroborée par la jurisprudence de la Cour de Strasbourg. Cette dernière a en effet, été saisie de cas de violations des droits fondamentaux liés à un traitement inapproprié des données dans le domaine judiciaire. De plus, des projets de réforme du système de protection de données personnelles sont actuellement en discussion au niveau européen. En effet, le Conseil de l’Europe et l’Union travaillent actuellement sur la modernisation des textes existants en matière de protection des données à caractère personnel. Il est donc intéressant de s’interroger sur la place réservée à la protection des données judiciaires dans le cadre de ces réformes. La thèse veut tout d’abord rappeler l’importance de protéger les données à caractère personnel en tout temps, en tout lieu et dans n’importe quel domaine d’activité, y compris le domaine judiciaire. Elle a pour but principal, d’une part, de mettre en évidence les problèmes existants en matière de protection de données judiciaires et, d’autre part, d’essayer de répondre à la question de savoir si une réglementation spécifique dans ce domaine doit aujourd’hui être élaborée au niveau européen. Dans la première partie les textes du Conseil de l’Europe et de l’Union européenne en matière de protection des données et leur applicabilité au domaine judiciaire sont tout d’abord analysés. Compte tenu du fait que les textes actuellement en vigueur au niveau du Conseil de l’Europe et de l’Union ont, à première vue, un contenu identique, il a été nécessaire d’analyser ces textes avec un esprit comparatif afin de comprendre comment ceux-ci se concilient et de vérifier leur applicabilité aux données judiciaires. [...]<br>In our society which can be called "information society" and also society of "electronic surveillance," it is essential to ensure the protection of personal data. The implementation of regulations on data protection has not always been easy, and in some areas, remains complex. The judiciary is a striking example of an area where it has been difficult to establish specificand appropriate rules for the protection of personal data. In the years ninety, the question was raised whether a specific protection for judicial data was necessary. The findings were different: on the one hand, some have estimated that a specificregulation was appropriate, on the other hand, others felt that the idea of establishing such rules must be abandoned. This study seems to have been - at some point - quitted. Given the improvements in technology and the evolution of European legislation, it seems essential to renew this question and try to find out which level of protection is given to judicial data in the current European system of protection of personal data. The importance to renew this question is proven by the case law of the Strasbourg Court. The latter has indeed been referred to cases of human rights violations due to improper processing of data in the judiciary. In addition, plans to reform the system of protection of personal data are currently under discussion at European level. Indeed, the Council of Europe and the European Union are currently working on the modernization of existing texts on the protection of personal data. It is therefore interesting to examine the place reserved for the protection of judicial data in the context of these reforms. The thesis recall the importance of protecting personal data at any time, in any place and in any field of activity, including the judiciary. Its main aim, on the one hand, is to highlight existing problems in the protection of judicial data and, on the other hand, to answer the question of whether a specific regulation in this area must nowadays be developed at European level. In the first part Council of Europe and the European Union’s texts on data protection and theirapplicability to the judicial data were analyzed. Given the fact that the texts currently into force at the Council of Europe and at the European Union, at first glance, have the same content, it has been necessary to analyze them with a comparative approach in order to understand their interoperability and verify their applicability to judicial data. Despite the multitude of texts on data protection present at European level (those of the Council of Europe and of the European Union), a marginal space is reserved to judicial data. The basic principles stated in these texts are in theory applicable to judicial data but in concrete those are not applied. In any case, those texts do not provide effective protection of judicial data. [...]<br>Nella nostra società, che può essere chiamata “società dell'informazione” o anche società di “sorveglianza elettronica”, è ormai indispensabile garantire la protezione dei dati personali. L'attuazione della normativa in materia di protezione dei dati non è sempre stata cosa facile, e per alcuni settori di attività, essa risulta tutt’ora un’operazione complessa. Il settoregiudiziario ne è un esempio. In effetti, si tratta di un settore in cui è stato difficile elaborare ed attuare regole specifiche ed adeguate per la protezione dei dati personali. Negli anni novanta, ci si è chiesti se fosse necessario provvedere all’adozione di regole specifiche per la protezione dei dati trattati a fini giudiziari. Secondo una prima teoria una regolamentazione specifica risultava opportuna, tuttavia secondo un’altra teoria l'idea di creare una regolamentazione per la protezione dei dati personali trattati in ambito giudiziario doveva essere accantonata. Lo studio di tale questione sembra essere stato - ad un certo punto - abbandonato. Dati i miglioramenti tecnologici intervenuti negli ultimi anni e l'evoluzione della legislazione europea in materia di protezione dei dati, sembra indispensabile porsi nuovamente la questione dell’opportunità di una regolamentazione specifica per il settore giudiziario. Sembra altresì opportuno interrogarsi sull’importanza che attualmente viene attribuita alla protezione dei dati trattati per finalità legali nell’ambito dell’attuale sistema europeo di protezione dei dati personali. Tale necessità sembra essere corroborata dal contenuto della giurisprudenza della Corte di Strasburgo. Quest'ultima è stata, infatti, spesso adita per casi di violazioni dei diritti fondamentali dovuti ad un trattamento illecito dei dati personali per ragioni di giustizia. Inoltre, dei progetti di riforma del sistema di protezione dei dati personali sono attualmente in discussione a livello europeo. Infatti, il Consiglio d'Europa e l'Unione europea stanno attualmente lavorando sulla modernizzazione dei testi esistenti in materia di protezione dei dati personali. E 'quindi altresì interessante esaminare quale importanza è data alla protezione dei dati giudiziari nel contesto di dette riforme. Oltre a ricordare l'importanza della protezione dei dati personali, in qualsiasi momento, in qualsiasi luogo e in qualsiasi settore di attività, tra cui quello giudiziario, l’obiettivo principale delle tesi è, da un lato, di evidenziare i problemi esistenti in materia di protezione dei dati giudiziari e, dall’altro, di valutare l’opportunità dell’esistenza a livello europeo di una normativa specifica per questo settore. Nella prima parte i testi del Consiglio d'Europa e dell'Unione europea in materia di protezione dei dati e la loro applicabilità al settore giudiziario sono analizzati. Tenuto conto del fatto ch i testi attualmente in vigore presso il Consiglio d'Europa e l'Unione europea hanno, di primo acchito, lo stesso contenuto, è stato necessario analizzarli con un’ottica comparatistica al fine di capire come essi si conciliano e di verificare la loro applicabilità ai dati giudiziari
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Čekanauskaitė, Laima. "Europos Žmogaus Teisių Konvencijos 8 straipsnio taikymo ypatumai ginant pažeistas teises su aplinka susijusiose bylose." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2012. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2012~D_20120124_131603-03991.
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1950 m. visuotinis aplinkos apsaugos poreikis dar nebuvo akivaizdus, todėl teisė į aplinką nebuvo paminėta Europos žmogaus teisių ir pagrindinių laisvių apsaugos Konvencijoje. Dėl aplinkos taršos iškilo asmenų teisės į aplinką problema ir šios teisės gynimo būtinybė. Dėl šios priežasties galima teigti, kad Europos žmogaus Teisių Teismo praktikos vaidmuo aiškinant teises, įtrauktas į EŽTK, šiomis dienomis yra labai svarbus spendžiant aplinkos problemas žmogaus teisių kontekste.
Teismas interpretuoja aplinkos teises kitų teisių, esančių EŽTK, pagrindu, įskaitant teisę į privatų ir šeimos gyvenimą. Kadangi tam tikra rimta žala aplinkai gali pažeisti ir asmenų teises, ypač teisę į privatumą ir būsto neliečiamumą, šiame magistro baigiamajame darbe nagrinėjama EŽTK 8 straipsnio taikymo su aplinka susijusiose bylose problema.
Magistriniame darbe siekiama išnagrinėti svarbiausius EŽTK 8 str. taikymo ginant pažeistas žmonių teises su aplinka susijusiose bylose ypatumus Europos Žmogaus Teisių Teismo jurisprudencijoje, ir šio straipsnio taikymą bei aiškinimą Lietuvos teismuose. Todėl yra analizuojami teismų sprendimai, susiję su aplinkos teisių pažeidimais, kylančiais dėl aplinkos būklės blogėjimo.
Darbe nagrinėjamos Konvencijos 8 straipsnio taikymo sąlygos su aplinka susijusiose bylose. Jos yra dvi: ryšys tarp pažeidimo ir valstybės bei rimta tiesioginė žala, pasiekianti minimalų sunkumo lygį. Taip pat analizuojami šio straipsnio taikymo ypatumai. Pagrindiniai ypatumai yra susiję... [toliau žr. visą tekstą]<br>In the 1950s, the universal need for environmental protection was not yet apparent, therefore there was no mention of right to environment in the European Convention on Human Rights and Fundamental Freedoms. Due to pollution of natural environment, there arise an important problem of the human right to environment and the necessity of the protection of this right. For this reason it is possible to state that the role of the European Court of Human Rights practice and its interpretation of the rights, included in the ECHR, to respond environmental concerns within the context of human rights is especially relevant nowadays.
Court interprets the environmental rights on the basis of other rights, which are included in the ECHR, including the right to private and family life. Since some serious damage to the environment may violate the rights of individuals and, in particular their right to privacy and the inviolability of home, in this master's final work a problem of the application of Article 8 ECHR in environment-related cases is examined.
Master's Work seeks to examine the most important specificities of application of Article 8 of the ECHR in defending violated human rights in environment-related cases in the case law of the European Court of Human Rights and the application and interpretation of this Article in the courts of Lithuania. Therefore the judgments, related to interference in individual rights derived from environmental degradation, are analyzed.
It examines... [to full text]
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Overmeyer, Nina. "Domestic Violence as a Violation of the European Convention on Human Rights : The Application of Articles 3 and 8 by the European Court of Human Rights in Cases Concerning Domestic Violence." Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-94621.
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Rongier, Valérie. "L'insaisissable famille." Thesis, Le Havre, 2015. http://www.theses.fr/2015LEHA0021/document.
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La famille du XXIème siècle, héritière d’un idéal défini d’abord par l’Église puis par le Code civil, est née des bouleversements sans précédent qu’a connu la société dans son ensemble. Pendant des siècles, le rôle essentiel de la famille était lié à la transmission patrimoniale et culturelle entre générations. Aujourd’hui, la famille doit favoriser le développement individuel et la réalisation personnelle de chacun de ses membres. La famille est de moins en moins une institution normée, aux formes et aux codes prédéfinis, d’autant qu’elle doit composer avec le droit individuel à « une vie familiale normale » que consacre l’article 8 de la Convention européenne des droits de l’homme. L’influence des droits fondamentaux qui sont par nature des droits individuels dans la vie familiale confirme bien que la famille est davantage le lieu d’épanouissement individuel qu’une entité tournée vers un intérêt commun. Tout ou presque est devenu possible en termes de combinaisons familiales. On peut désormais choisir son sexe (transsexualisme), décider de créer une famille ou de vivre seul sans que la société ne s’en émeuve particulièrement.Les liens et les rôles de chacun dans la famille ne sont plus ni pérennes ni clairement définis. Les progrès scientifiques (qui ont surtout permis une contraception efficace) et la révolution sexuelle ont complètement transformé la sexualité, la vie de couple et la procréation. Il n’y a plus un seul modèle de couple fondé exclusivement sur le mariage d’un homme et d’une femme. Le couple est maintenant homosexuel ou hétérosexuel, libre de vivre ou non ensemble, d’être fidèle, de se marier, de se séparer, de conclure un pacs, de vivre en concubinage. La conjugalité est donc désormais plurielle et repose sur l’égalité entre ceux qui composent le couple et entre les différents modèles de couples possibles. Les relations entre les parents et les enfants ont également été bouleversées. La parentalité s’impose peu à peu à côté de la parenté. La filiation va devoir composer avec les nouvelles cuisines procréatives. La procréation médicalement assistée, la gestation pour autrui ou l’utérus artificiel doivent modifier l’établissement du lien de filiation qui ne peut se déduire du seul lien biologique. Le droit devra répondre, parfois contraint sous l’influence ou la pression internationale, aux nouvelles aspirations sociales et sociologiques et tenter de trouver un équilibre entre la liberté individuelle et la dimension institutionnelle de la famille<br>While it was initially born out of the ideals set out first by the Church and then by the Civil Code, family in the 21st century is really the offspring of the unprecedented upheavals that have shaken society as a whole. For centuries, the essential role of family was linked with cross-generational patrimonial and cultural transmission. Nowadays, family must instead facilitate the individual development and self-realization of every single one of its members. The family is an institution that is decreasingly bounded by predetermined norms, forms, and codes, not least because it must align itself to the individual right to a “normal family-life”, to which Article 8 of the European Convention of Human Rights is dedicated. More or less everything is now possible in terms of family make-up. One can now choose one’s legal sex/gender (transgenderism), decide to establish a family, or live alone, without society being particularly affected by any of it. The ties and roles of each individual in the family are no longer perennial, no clearly defined. Scientific progress (through which efficient contraception became available) and the sexual revolution have completely transformed sexuality, romantic relationships, and procreation. There is no longer a single model for the romantic relationship, based on the marriage of a man to a woman. The couple is now homosexual or heterosexual, and individuals may choose whether they want to live together or be faithful. They can also choose if and when to get married, to separate, to be joined in a civil union (pacs), or to simply live under the same rooftop. In other words, conjugality is now pluralistic and rests on the equality both of the individuals constituting the couple, and between different models of romantic relationships. Relationships between parents and children have also been completely changed. Parenting is gradually gaining on kinship. Filiation will soon be forced to reckon with the different procreational recipes. Various assisted reproductive technologies, including artificial insemination, surrogacy, and the artificial uterus must change the ways in which kinship is established since it can no longer simply be deduced from biological ties. The law will have to respond to new social and sociological aspirations, and will sometimes even have to do so under international influence or pressure. It will, in fact, have to find a new equilibrium between individual freedoms, and the institutional dimensions of the family
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Gajdošová, Jana. "Article 8 ECHR and its impact on English law." Thesis, University of East Anglia, 2008. https://ueaeprints.uea.ac.uk/10564/.
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The thesis examines the scope of the right to respect for one's private life, family life, home and correspondence as set out in Article 8 of the European Convention on Human Rights (ECHR). It does so with reference 16 both the admissibility and merits decisions and judgments from the European Court of Human Rights (ECtHR). It thus shows not only the range of interests that Article 8 covers in the light of the main ECHR principles of proportionality, margin of appreciation or that of living instrument, but also the interests and rights that fall outside Article 8's ambit. At the same time, it offers a clear picture of two basic procedural stages that each individual complaint has to go through in Strasbourg.
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Lowe, James Joseph Greaves. "Freedom of artistic expression under Article 10 of the European Convention on Human Rights." Thesis, University of Edinburgh, 2017. http://hdl.handle.net/1842/23442.
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Under the auspices of Article 10 of the European Convention on Human Rights the right to freedom of expression is said to be held by everyone and to include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority, subject to the limitation clauses outlined in Article 10(2). Whilst the text of Article 10 therefore makes no explicit reference to specifically artistic expression, the European Court of Human Rights has, in its interpretation of ‘information and ideas’, nevertheless accepted that artistic expression does indeed fall within the ambit of Article 10’s protection of freedom of expression. However, despite the Court recognising artistic expression as a form of expression within the framework of Article 10, conclusions reached in the early case law concerning the issue of controversial artworks would appear to suggest the judicial creation of an implicit hierarchy of expression under which artistic expression is seen to enjoy a relatively low level of protection. Given the non-differentiated articulation of the right to freedom of expression enounced in the text of Article 10, the creation of such a hierarchy of expression is therefore a cause for doctrinal concern. In seeking to assess this misnomer the thesis’ analysis of the treatment of artistic expression under Article 10 of the European Convention on Human Rights may be distilled in to two component parts. Firstly, a theoretical basis will be established from which artistic expression may be located within the context of the discourse pertaining to freedom of expression more generally. Having confirmed that, whilst of a distinctive, sui generis nature, artistic expression may indeed constitute ‘expression’ for the purposes of freedom of expression doctrine the second part of the thesis will examine the particular question of artistic expression’s treatment under Article 10 of the European Convention on Human Rights.
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Romola, Adeola. "State responsibility to prevent development-induced displacements – implementing article 10 of the Kampala Convention." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/37394.
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Webster, Elaine. "Exploring the prohibition of degrading treatment within Article 3 of the European Convention on Human Rights." Thesis, University of Edinburgh, 2010. http://hdl.handle.net/1842/4062.
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This thesis addresses the meaning and scope of application of the right not to be subjected to degrading treatment, a distinct form of harm within the absolute prohibition of torture, inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights. Through an interpretive case-law analysis, the thesis presents a deeper conceptual understanding of the meaning of degrading treatment than is found in existing human rights literature. It is a central argument of this thesis that the concept of human dignity occupies a key position in the interpretation of degrading treatment adopted by the European Court of Human Rights. Consequently, it is argued that the meaning of human dignity in this context ‘frames’ the potential boundaries of the right. The thesis aims to facilitate identification of situations that may convincingly be argued to amount to potential instances of degrading treatment through generating a richer appreciation of the right’s proper scope of concern. A comprehensive account of the meaning of degrading treatment and corresponding state obligations is offered. This account provides a framework for future application of the right that is both practical and plausible.
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Harun, Suraya Binti. "Environmental science and Article 121(3) of the United Nations Convention on the Law of the Sea." Thesis, University of Southampton, 2017. https://eprints.soton.ac.uk/422204/.
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The impact of Article 121(3) of the United Nations Convention on the Law of the Sea on ‘rock’ islands is a critical issue, affecting the extent of their maritime entitlement, namely whether they have the right to an exclusive economic zone and a continental shelf, or otherwise. The required criteria for such rocks to be able to sustain human habitation or have an economic life of their own which determine the outcome of their maritime entitlement had triggered the need to ascertain the elements that satisfy these criteria. An investigation into relevant available sources and materials such as the legislative history of the provision, judicial decisions, State practice and views by maritime legal experts and other scholars has revealed the complexity and difficulties in identifying a common understanding of the matter, with particular regard to States as the directly affected party under this provision which thus calls for other ways that could contribute to address the issue. This research thus applied environmental science as one of the means to contribute in providing a reasonably acceptable starting point for States that could be used if the need arises. A more serious attitude towards the application of scientific evidence, with primary regard to the relationship between humans and their environment, should thus be given as it can provide a platform for States to initiate negotiations concerning the matter.
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Mavronicola, Natasa. "Delimiting the absolute : the nature and scope of Article 3 of the European Convention on Human Rights." Thesis, University of Cambridge, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.648851.
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Felemegas, John. "The United Nations Convention on Contracts for the International Sale of Goods : Article 7 and uniform interpretation." Thesis, University of Nottingham, 2000. http://eprints.nottingham.ac.uk/11055/.
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The United Nations Convention on Contracts for the International Sale of Goods, 1980 ("CISG") creates a uniform law for the international sale of goods. However, textual uniformity is a necessary but insufficient step towards achieving substantive legal uniformity, since the formulation and enactment of a uniform legal text carries no guarantee of its subsequent uniform application in practice. This thesis therefore considers different approaches to the interpretation of CISG and evaluates their appropriateness for uniform international trade law, before advancing an interpretative approach based on the concept of internationality and generally acknowledged principles of commercial law, such as the UNIDROIT Principles. The analysis offered by the present writer is based on the examination of the nature, scope and function of Article 7 CISG, which expressly prescribes the direction that CISG's interpretation and application should follow and whose own interpretation will determine, to a large degree, the ultimate fate of CISG as a truly uniform code. Owing to its unique nature and limitations, it is necessary that CISG exist on top of a legal order that can provide doctrinal support and solutions to practical problems - such as gap-filling - in order to guarantee CISG's functional continuity and development without offending its values of internationality, uniformity and good faith, as expressed in Article 7(1) CISG and analysed in this thesis. It is the opinion of the present writer that CISG is, and must remain, a self-contained body of rules, independent of and distinct from the different domestic laws. Supported by analysis of the existing doctrine, as well as by case law, this thesis argues that the necessary legal backdrop for CISG's existence and application can be provided by general principles of international commercial law, such as those exemplified by the UNIDROIT Principles, which will, if adopted, render the textual reference in Article 7(2) CISG to private international law redundant - a positive step towards uniformity. The recourse to rules of private international law in the interpretation of CISG, even as a last resort, would represent regression into doctrinal fragmentation and practical uncertainty. The relevant textual reference in Article 7(2) CISG to such a method is the regrettable result of diplomatic drafting compromises and should remain inactive, since its activation would reverse the progress achieved by the world wide adoption of CISG as a uniform body of international sales law.
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Hussain, Tassadaq. "Muslim women who veil and Article 9 of the European Convention on Human Rights : a socio-legal critique." Thesis, University of Central Lancashire, 2016. http://clok.uclan.ac.uk/16653/.
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Islamic veiling has been the subject of many theological, social and legal debates, which are fluid and their intensity has been further influenced by its contextualised meanings such as religiosity, modesty, identity, resistance, protest, choice and subjugation. Literature on Muslim veiling has either examined its treatment by legal or socio-feminist perspectives, whereas this thesis critiques the religious, socio-feministic and the legal discourses. The contemporary discourse is dominated by competing binaries that label it as a tool of oppression or one of empowerment. Many of the assertions are based not on the veil’s multiple meanings or the wearer’s true motivations but on misplaced assumptions of moral authority by those who oppose or defend the practice, as well as native informants professing to represent veiled Muslim women, leaving Muslim veiled women’s voices muted. Having examined the religious imperative that has a patriarchal basis, the thesis constructs a critique of the two dominant discourses central to the contemporary debates on veiling. One discourse defends the practice as empowering whilst the other calls for prohibitions on the practice using liberation from oppression as a justification, particularly with issues surrounding the wearing of the full face veil. This is followed by a critique of the key cases generated under Article 9 ECHR, which attempts to balance the religious rights of those who veil with the rights of others. The case law highlights that the ECtHR not only falls short in disclosing satisfactorily how it has struck a balance between these competing rights, but also fails to adopt a neutral stance to religious expression through symbols, its reasoning being based on contradictory stereotypes of Muslim women as passive and victims of gender oppression in need of liberation. The influence of such stereotypes and an inadequate application of the margin of appreciation doctrine have led the ECtHR in validating state prohibitions on the hijab and the full face veil, thereby failing to acknowledge the voices of the veiled women at the centre of a human rights claim, delivering a further blow to them. Post the case of S.A.S. v. France the ECtHR has exasperated this even further by allowing an abstract principle of ‘living together’ as a justification for the full face veil’s prohibition in public spaces, resulting in Article 9 rights of Muslim women who veil being endangered even further by the introduction of such an open-ended ground.
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Chen, Xuming. "L' article 6&1 de la Convention européenne des droits de l'homme et la procédure civile française." Aix-Marseille 3, 2002. http://www.theses.fr/2002AIX32027.
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Les grands esprits soucieux de la souveraineté nationale pourraient comparer la ratification de la Convention européenne des droits de l'homme par la France, et plus particulièrement la reconnaissance du droit de recours individuel, à l'ouverture de la boîte de Pandore, par laquelle le droit interne serait entré dans un processus irréversible de soumission à la Convention européenne telle qu'interprétée par la Cour européenne, hors de tout contrôle des pouvoirs publics français. Ce serait se méprendre sur la nature de ce processus. Car plus que de soumission, il s'agit d'intégration : la Convention européenne, et notamment son article 6&1 en ce qui concerne la procédure civile, fait désormais partie intégrante du droit français. La confrontation du droit interne avec les normes du procès équitable de la Convention européenne fait par ailleurs ressortir une "conventionnalité" générale des règles de procèdure civile française. .<br>Fot those great minds who are concerned about national sovereignty, France's ratification of the European Convention on human rights, and most importantly the recognition of individual applications, could be compared to the opening of a Pandora's box, the beginning of a process whereby French law was allegedly bound to submit to the European Convention as interpreted by the European Court of human rights. This is mistaken belief, because this process is not one of submission, but one of incorporation : today, the European Convention is an integral part of French law. As far as civil procedure is concerned, French rules broadly conform with article 6&1 of the Convention. Whenever France has been condemned by the European Court of human rights on the grounds of violation of the Convention, it was most often not for having ignored the fundamental principles of law, but for having interpreted them differently. .
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Yilmaz, Anil. ""Nationality" as a jurisdictional requirement for corporate investors under Article 25 of the ICSID Convention : a critical analysis." Thesis, University of Essex, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.654435.
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The purpose of this thesis is to analyse the concept of nationality for corporate investors under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (,ICSID Convention'). Pursuant to Article 25 of the ICSID Convention, ICSID arbitration tribunals have jurisdiction to resolve legal disputes arising out of an investment between an ICSID Contracting State and a national of another ICSID Contracting State, provided the disputing parties have consented, in writing, to submit their disputes to the ICSID jurisdiction. Article 25 requires the corporate investor to hold a certain nationality, but it does not lay down a method for the determination of that nationality. It is argued in this thesis that interpretation of the concept of 'nationality' for corporate investors by most ICSID tribunals risk an unwarranted extension of host state consent to arbitrate. This unwarranted extension of consent exposes the respondent host states to claims by an unlimited number of investors, including those that have not obtained the host state's consent to arbitrate required under the ICSID Convention. In the absence of a sound assessment of the jurisdictional requirements, tribunals risk resolving disputes over which they do not have jurisdiction. This raises serious questions on the legitimacy, and validity of the decisions rendered by ICSID tribunals which are not subject to any meaningful review and which often have significant impact on the general public. Against this background, a re-evaluation of the concept of corporate nationality is offered, which aims at mitigating the concerns on legitimacy and certainty that arise from jurisdictional defects. This attempt is guided by a balanced approach to the disputing parties' rights and interests and with a greater emphasis on economic realities rather than formal appearances. In this connection, the purpose and special characteristics of the corporate entity and the exceptional nature of the ICSID dispute settlement mechanism are placed at the centre of the analysis. Finally, it is argued that the 'real seat' theory, found in various civil law jurisdictions, should be central to the assessment off corporate investors' nationality under the ICSID Convention.
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Bodin, de Galembert Noémie de. "European Community and human rights : the antitrust enforcement procedure facing article 6 of the European Convention on Human Rights." Thesis, McGill University, 2002. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=78211.
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The Senator Lines' case, currently pending before the European Court for Human Rights, reveals a lack of procedural fairness of the European Antitrust enforcement under the terms of the European Convention for Human Rights. But in spite of a well-established concern for Fundamental Rights from the European Community, the later is still not bound by the Convention.<br>That is why it is critical that the EC accede to the Convention following the example of its branches. Meanwhile, it is necessary to determine whether the Member States could be held responsible for the Community's acts that violate the rights protected by the Convention. That is the question the Court will have to answer in the Senator Lines' case. Nevertheless, the Council Regulation which organises the antitrust enforcement procedure must be reformed in order to ensure an indispensable balance of power.
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Mirambell, i. Fargas Miquel. "The Seller's right to cure under article 48 United Nations Convention on contracts for the international sale of goods." Doctoral thesis, Universitat Pompeu Fabra, 2017. http://hdl.handle.net/10803/404845.
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In principle, contracts are enforceable mutually beneficial agreements. In the event of a breach of contract, many national, supranational, and international legal systems—as well as recent European harmonization projects on private law—turn to cure regimes for the furtherance of such (assumed) contractually generated welfare. Namely, a mandatory Nachfrist-mechanism, a hierarchy of remedies, and debtor’s (in sales law: seller’s) rights to cure—before and after performance date—are normative devices intended to perform and preserve contracts, employing purportedly better, more cost-effective remedies for breach. Discussion of the utility of these legal institutions undisputedly belongs to the debate on modern contract law.
In this thesis, one of these cure-oriented devices is exhaustively analyzed: the seller’s right to cure after performance date under Article 48 CISG1. Whereas according to paragraph (1) the seller—provided that certain preconditions are met—can impose subsequent performance on the aggrieved buyer, under paragraphs (2-4) they can merely offer cure within a period of time, irrespective of any preconditions.
Article 48 CISG’s systematic setting, comparative law framework, origin, forerunners, preconditions for existence—general and specific—performance in practice, legal consequences—with regards to both the breach-of-contract regime and the availability of other remedies under the CISG—, and economic-behavioural implications are exegetically analysed. A particular focus is given to the allocation of contractual risk (see epigraph 3.2.9). Finally, conclusions are drawn at two levels: one concerning the CISG’s regime and another related to general Contract law.<br>En principio, los contratos son acuerdos ejecutables mutuamente beneficiosos. En caso de incumplimiento del contrato, muchos sistemas jurídicos nacionales, supranacionales e internacionales—así como los recientes proyectos europeos de armonización en derecho privado—recurren a regímenes de subsanación para promover el bienestar que presumiblemente se ha generado con el contrato. A saber, un mecanismo de un Nachfrist obligatorio, una jerarquía de remedios y derechos del deudor (en compraventa: del vendedor) de subsanar—antes y después de la fecha de cumplimiento—son instrumentos normativos destinados a dar cumplimiento a los contratos y a preservarlos por medio de remedios, a priori, económicamente más eficientes. La discusión sobre la bondad y utilidad de estas instituciones indudablemente pertenece al planteamiento de un derecho de contratos moderno.
En esta tesis se analiza exhaustivamente uno de estos instrumentos de subsanación: el derecho del vendedor a subsanar después de la fecha de entrega en virtud del artículo 48 CISG2. Mientras que de acuerdo con su párrafo (1) el vendedor –reuniendo ciertas condiciones previas– puede imponer una ulterior ejecución al comprador perjudicado; en virtud de los párrafos (2-4), éste solamente puede ofrecer una subsanación dentro de un plazo, pero independientemente de cualquier condición previa.
Del citado artículo 48 se analizan exegéticamente el entorno sistemático, el marco en derecho comparado, el origen, los precursores, las condiciones previas para la existencia—generales y específicas—, su ejecución en la práctica, las consecuencias jurídicas—en el régimen del incumplimiento del contrato y en la disponibilidad de otros remedios bajo la Convención—así como las implicaciones económicas y conductuales. Se hace una contribución en relación con la asignación del riesgo contractual (véase infra 3.2.9). Finalmente, se extraen conclusiones a dos niveles: uno enfocado al régimen de la Convención y otro relativo al Derecho de contratos en general.
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Olsson, Silje. "The Use of Straps as Compulsory Treatment : A Violation of Article 3 of the European Convention on Human Rights?" Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-76621.
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Rebelo, Xavier. "Islands and Rocks: moving towards certainty on the interpretation of Article 121 of the Law of the Sea Convention?" Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/25401.
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The regime of islands, as captured in Article 121 of the United Nations Convention on the Law of the Sea (LOSC) grants a 200 nautical mile exclusive economic zone and continental shelf to all islands apart from "rocks which cannot sustain human habitation or economic life of their own." The provision was undoubtedly drafted in an intentionally ambiguous manner in order to strike a compromise between the contrasting views of States surrounding the regime of islands. Consequently, Article 121 is riddled with textual ambiguities. For example, the text does not further define the word "rock"; nor does the provision explain what it means to "sustain human habitation or economic life". As a result of these ambiguities, many States are of the opinion that Article 121 allocates a 200 nautical mile zone to every piece of land that protrudes above water. This provision is problematic as it potentially allocates vast amounts of ocean space to nations claiming sovereignty over tiny uninhabited islands speckled throughout the oceans, severely limiting the space that remains for the "common heritage of mankind". In addition, the ambiguous wording of Article 121 has resulted in various territorial disputes between nations in relation to both the interpretation and application of the Article. This dissertation seeks primarily to investigate whether the international community is moving towards certainty on the interpretation of Article 121 of the LOSC, with particular reference to the distinction between islands and rocks. In doing so, this dissertation will explore the body of jurisprudence of international courts and tribunals insofar as it relates to Article 121 of the LOSC. This is a fruitful exercise as any clarification in this regard will undoubtedly unify State practice surrounding the application of Article 121. This may have the effect of reducing conflict between States and ensuring that ocean spaces around insular formations are apportioned in an equitable and standardised manner.
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Sidhu, Omkar. "The concept of Equality of Arms in criminal proceedings under Article 6 of the European Convention on Human Rights." Thesis, Durham University, 2011. http://etheses.dur.ac.uk/885/.
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Inherent in and at the core of the right to fair trial in Article 6 of the European Convention on Human Rights is the concept of equality of arms, the construct to which this thesis is devoted within the context of criminal proceedings. As a contextual prelude to specific analysis of this concept, a background for Article 6 is first established which identifies influential historical developments in trial rights and provides an outline of the rationale for the Convention and of the content, and applicability, of the article. Thereafter, the thesis offers a theoretical insight on equality of arms, identifying and exploring its value, contemporary international legal basis and constituent elements as per the Strasbourg definition. The insight on the latter recognises an underpinning relationship between the concept of equality of arms and Article 6(3), and introduces the key argument in the thesis: the European Court of Human Rights equates inequality of arms not with procedural inequality in itself, which would be a dignitarian interpretation, but with procedural inequality that gives rise to actual or, in some circumstances, inevitable prejudice. This argument predominates the subsequent survey of case-law in which the Court’s approach to procedural equality is demonstrated and assessed within the context of the right to challenge and call witness evidence (Article 6(3)(d)), the right to adequate time and facilities (Article 6(3)(b)) and the right to legal assistance (Article 6(3)(c)). Though the thesis is based on Article 6 decisions of the Court and, to a lesser extent, the former European Commission of Human Rights, references are made throughout to other national and international legal instruments and judgements whenever instructive.
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Rosenberg, Jennifer. "The penalty fee in the Electricity Certificates Act : in relation to article 6 in the European Convention on Human Rights." Thesis, Internationella Handelshögskolan, Högskolan i Jönköping, IHH, Rättsvetenskap, 2010. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-14192.
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The government of Sweden encourage the development of electricity produced from renewable sources by maintaining an electricity certificates system in which producers that use renewable sources in their production are given certificates. The system is regulated in the Swedish Electricity Certificates Act (lag (2003:113) om elcertifikat). To prevent fraudulent behaviour a penalty fee is charged upon producers that have recieved certificates due to incorrect or misleading information. The penalty fee can be appealed to a court but under the Electricity Certificates Act it is not allowed to reduce or adjust. The purpose of this thesis is to analyse if the penalty fee in the Electricity Certificates Act meets the requirements of legal certainty in article 6 of the European Convention on Human Rights (the Convention) including right to a fair trial and to be seen as innocence until proven guilty. The method used is analysing applicable sources in accordance with the Swedish legal hierarchy in which laws have the highest value. The Convention is incorporated into Swedish law and has the same legal value as such. Judgments from the European Court of Human Rights on the Swedish tax surcharge are used for guidance on how to interpret article 6 in the Convention. Two cases from Swedish courts concerning the penalty fee are used to find what problems the penalty fee encounters in a legal process. The rules on the penalty fee does not allow adjustments of it and circumstances in each case cannot be taken into consideration, therefore the penalty fee can be charged even when it would be unreasonable and there is a conflict with legal certainty in article 6 of the Convention. For that matter rules on evidentiary issues also has to be implemented. Courts can refuse to use rules which are in conflict with the Convention, but it is concluded that a change in regulation is needed.
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Fikadu, Tarikawit. "Domestic Violence and self-defence claim : An analysis in relation to article 2and 3 of European Convention on Human Rights." Thesis, Umeå universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-174520.
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Al-Shareef, Naif S. "Enforcement of foreign arbitral awards in Saudi Arabia : grounds for refusal under article (V) of the New York Convention of 1958." Thesis, University of Dundee, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.395692.
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Lebeko, Motshidisi Jane Jerminah. "Does Article 13 of The Hague Convention on the Civil Aspects of International Child Abduction, 1980 protect victims of domestic violence?" University of the Western Cape, 2016. http://hdl.handle.net/11394/5161.
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Córdova, Schaefer Jesús. "¡I did not sign anything!: the non-signatories of the arbitral convention. The structure of article 14 of the peruvian arbitration law." THĒMIS-Revista de Derecho, 2018. http://repositorio.pucp.edu.pe/index/handle/123456789/123865.
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Modern commercial relations have been making their dynamics more complex over the years and have made of arbitration the best way of conflicts resolution. One of the most complex changes has been the addition of elements in national and international arbitration agreements. It is also of fundamental importance to define who are the parties involved in the arbitration, both parties involved and non-signatories.In this article, the author analyzes the figure of third parties who have not subscribed to the arbitration agreement in light of the Peruvian Arbitration Law.In addition, the author proposes solutions for its better regulation.<br>Las relaciones comerciales modernas han ido complejizando su dinámica a través de los años y hacen del arbitraje el medio de solución de controversias por excelencia. Uno de los cambios más complejos ha sido el agregado de elementos en los convenios arbitrales en el ámbito nacional e internacional que deben analizarse. Es, además, de relevancia fundamental definir quiénes son las partes que intervienen en el arbitraje, tanto las partes involucradas como los no-signatarios.En este artículo, el autor analiza la figura de los terceros que no hayan suscrito el convenio arbitral a la luz de la Ley Arbitral Peruana, además de proponer soluciones para su mejor regulación.
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Swartz, Rikotoka Punaje. "Does the Permanent Establishment article give Namibia adequate taxing rights?An analysis of tax convention models in the mining and fishing industries." Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/29529.
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Namibia is a country rich in natural resources and heavily dependent on foreign investment to effectively make use of those resources. It has a national policy of encouraging investment from other countries and has set up incentives for that purpose. When there is a great deal of involvement of foreign companies in a country, international tax issues of judicial double taxation are discouraging to foreign investors. In an effort to address this risk, Namibia has entered into various double tax agreements with countries to ensure equitable taxing rights and encourage foreign direct investment. Double tax agreements are usually based on model tax agreements published by large international organisations, the most popular being the Organisation for Economic Cooperation and Development (“OECD”) and United Nations (“UN”). The African Tax Administration Forum (“ATAF”) has also recently formulated such a model for African countries. As Namibia has a source based taxation system, giving up any taxing rights are of great concern and it must consider if these double tax agreements is in its best interest. Subsequently, Namibia has begun the process of renegotiating its tax treaties with other countries in hope of sacrificing fewer source taxing rights. This dissertation analyses Namibia’s current double tax agreements to determine whether the permanent establishment article offers sufficient protection for Namibia’s source taxing rights with reference to Namibia’s largest and most important industries of fishing and mining. The permanent establishment article is of particular importance as it usually provides an unrestricted taxing right to the income in the source country in which the permanent establishment is based. This study considers the permanent establishment article as it applies to the fishing and mining industries in Namibia. This includes a discussion of the mining and fishing industries in Namibia and a brief look at the applicable taxation regime. It also compares the permanent establishment article found in the OECD, UN and ATAF models to discuss which represents the most appropriate for Namibia to use as the basis for its renegotiations. The agreements analysed do show some areas for concern to Namibia namely: • The treaty with the United Kingdom is very out dated and may not give Namibia full territorial rights.
• Many of the treaties with developed countries have permanent establishment article that are based more on the OECD model than the UN model which is specifically designed to give developing countries more taxing rights.
• The permanent establishment article in the ATAF model gives the most taxing rights to the host/source country and has specific provisions negating the risk of abuse by foreign companies. However, there is a concern that such provisions may have too wide a scope and discourage foreign investment.
• Most of the provisions of potential benefit to Namibia have been inserted in Article 5(2) and are arguably ineffective or less effective protections.
• Namibia’s current DTAs contain no provisions directly related to fishing vessels which is of concern as fishing vessels are at risk of not being classified as permanent establishments. There are, however, arguments to be made for a fishing vessel as a mobile place of business forming a permanent establishment without such special provision.
• A specific deeming provision regarding the permanent establishment in the exploration phase of the mining process would be advisable if Namibia wished to create one in the mining industry as soon as possible.
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Eriksson, Magnus, and Fredrik Richter. "Thin Capitalisation : A comparison of the application of article 9.1of the OECD model tax convention and the Swedish adjustment rule to thin capitalisation." Thesis, Jönköping University, JIBS, Commercial Law, 2006. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-396.
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<p>This thesis answers the question “How does the application of the Swedish adjustment rule correspond to the OECD point of view regarding intragroup loans to thinly capitalised companies?” The question is answered by using the traditional legal method and by examining the way the adjustment rule is applied by the Supreme Administrative Court, the Swedish approach when using the arm’s length principle in Swedish law is then compared to the approach recommended by the OECD.</p><p>From a tax point of view intragroup prices on commodities and services are of vital importance for multinational enterprises, since these prices in the end affects the total corporate taxation. Also the way of financing a company can have tax implications since it could be an advantage for an MNE to arrange financing of companies within the group through loans rather than contribution of equity capital. A company with a disproportionate debt to equity ratio is considered thinly capitalised and since interest payments are considered deductible expenses, which dividends are not, it provides a way to transfer untaxed profits within a group. This may be an incentive for MNEs to intentionally thinly capitalise companies by providing them with capital through loans instead of equity contributions.</p><p>The Swedish provision regulating transfer pricing between associated enterprises is the adjustment rule which expresses the arm’s length principle. The purpose of the rule is to adjust erroneous pricing between associated enterprises and it has four requisites that have to be fulfilled in order to be applicable. In the thesis it is concluded that nothing in the preambles to the adjustment rule points at the provision being applicable to thin capitalisation, on the contrary they indicate that it should have a narrow application. Through case law it has been established that the adjustment rule is not applicable to thin capitalisation situations in the sense that it can not be used to reclassify a loan into equity contribution. The provision is, in such a situation, only applicable to adjust interest rates that deviate from rates on the open market. The arm’s length principle expressed in article 9.1 of the OECD Model Tax Convention however seems to have a broader application than the adjustment rule. It is stated in the commentary to the article that it may be applied to prima facie loans, i.e. it can reclassify a loan into equity contribution if the surrounding circumstances points at it being the true nature of the transaction.</p><p>The conclusions drawn when comparing the reasoning of the Supreme Administrative Court with the OECD regarding the application of the arm’s length principle, is that the way the OECD reason regarding the true nature of a transaction is based on the same idea as the reasoning of the Swedish court. The Swedish Supreme Court however uses this type of reasoning when applying the substance over form principle and not when applying the adjustment rule. In other words, the difference is that the adjustment rule is not acknowledged the same scope of application as article 9.1.</p><p>Regarding the need to legislate against thin capitalisation in Sweden it is the authors’ opinion that since no examination of the problem has been performed, it is necessary to examine whether thin capitalisation in reality constitutes a problem for the Swedish revenue. Not until it is established if a problem exists should there be a discussion regarding the construction of such a provision.</p>
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Keeling, Amanda. "'Organising objects' : support for legal capacity in adult safeguarding and Article 12 of the UN Convention on the Rights of Persons with Disabilities." Thesis, University of Nottingham, 2017. http://eprints.nottingham.ac.uk/43475/.
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This thesis explores social workers’ practice and understanding of support for the exercise of legal capacity in adult safeguarding. The impetus for this study was the ‘revolution’ of article 12 of the UN Convention on the Rights of Persons with Disabilities, which questioned fundamental and long-held legal positions on the rights of people with mental impairments to make decisions about their lives. This shift is a fundamental one, but there is very little existing empirical evidence of how such a revolutionary change in legal frameworks might actually work in practice, and what the challenges may be. Thus, this thesis aimed to empirically examine existing practice, to explore what the baseline of understanding was, and the difficulties that social workers encountered in using support mechanisms. An ethnographic approach was taken, with participant observation of an adult safeguarding team over a 17 week period, followed by interviews with 7 of the social workers who had been closely observed. The importance of this study is that the focus of the debate on article 12 has been on restoring legal capacity to individuals who had previously been denied it on the basis of their lack of mental capacity. While this is important, and is discussed in this thesis, the empirical work that forms the basis of this study demonstrates that denial of legal capacity affects a much wider group. In this context, ‘support’ may be less about supporting decisions in the particular instance, but rather supporting the individual to effect the decision that they have made, or to continue to be able to make decisions in the future. Using a theoretical framework of relational autonomy and universal vulnerability, the analysis shows that social workers the individual framing of mental capacity in the law means that they struggle accommodate the possibility of support for that mental capacity from a third party. Adults who have mental capacity but are considered ‘vulnerable’ are also significantly disempowered in the safeguarding framework. The social workers see the concept of mental capacity as overly limiting, and that vulnerable adults who are not captured by the Mental Capacity Act 2005 may still lack what this thesis terms ‘relational capacity’. A link made between vulnerability and a lack of relational capacity results in individuals being disempowered, kept as ‘objects to be organised’, rather than agentive subjects. The conclusion of this thesis is that the potential for undue influence in the exercise of support under article 12 is very possible. The data shows that we must consider carefully how we respond to this, building a universally enabling environment, rather than one which reduces agency and legal capacity.
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Pušina, Armin. "How can a State interfere with an expression that constitute hate speech under Article 10(2) of the European Convention of Human Rights?" Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-76622.
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Ericson, Matilda. "The Execution of Judgements of the European Court of Human Rights : A Reflection on Article 46.4 ECHR." Thesis, Uppsala universitet, Juridiska institutionen, 2016. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-281428.
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Ronquillo, Andrea Carlin, Víctor Aguilar Sánchez, Carlos A. García Encinas, Paul Gómez Hinojosa, José Luis Pinto Valdivia, and Wilmer Silva-Caso. "Classic Kaposi’s sarcoma with multifocal gastrointestinal involvement. A case report." Sociedad Argentina de Gastroenterologia, 2020. http://hdl.handle.net/10757/655695.
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Although intestinal involvement occurs in more than half of the cases with KS that are HIV positive, it is uncommon in the classical form, as it occurs in approximately 10% of the patients. We present the case of a 60-year-old male patient with a one-year disease time characterized by having violaceous lesions on the feet and the hands, slightly pruritic and 2 months of epigastralgia and constipation with weight loss of approximately 12 percent of his total body weight. In the physical examination multiple violaceous papule-like lesions are shown on the hands and the feet, some coalescing to form plaques. Laboratory tests revealed a mild normocytic normocytic anemia, the serology for viral hepatitis B and C was negative, HIV negative and ELISA test too. An upper endoscopy was performed and multiple maculopapular and erythematous-violaceous lesions were observed in the esoph-agus, the stomach and the duodenum. In the colonoscopy, multiple lesions with similar characteristics in the ileum, throughout the colon and in the rectum were recognized. The biopsy result was compatible with the KS in all lesions and it was confirmed with the positive HVV-8 immunohis-tochemistry. This case highlights the likelihood of presenting GI SK in elderly patients with gastrointestinal compromise and cutaneous findings, HIV negatives as well as the need to realize an adequate discarding by performing endoscopic studies with the biopsies to optimize treatment.<br>Revisión por pares
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Hirt, Michael. "The constitutions of Italy, the Federal Republic of Germany and the United States of America in relation to Article 22 of the Warsaw Convention /." Thesis, McGill University, 1990. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=59931.
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Article 22 of the Warsaw Convention, 1929 limits the liability of the air carrier in the event of death or wounding of a passenger to 125,000 Francs-Poincare based on a defined gold value. In 1955, the limitation has been raised to 250,000 Francs-Poincare.<br>As gold has lost its special position in the monetary system the value of the limitation of liability has decreased and some plaintiffs have argued that the limitation of liability is unconstitutional.<br>The Warsaw System is presented, the grounds for a limitation of liability, and Article 22 are analyzed. The relationship between municipal law and international law is described. The constitutionality of Article 22 is examined for the jurisdictions of Italy, the Federal Republic of Germany and the United States of America. Those lines of argumentation that could be used to challenge Article 22 in all constitutional systems similar to those of the abovementioned States are presented.
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McCarthy, Frankie. "Article One of the First Protocol to the European Convention on Human Rights : the evolution of a right in Europe and the United Kingdom." Thesis, University of Glasgow, 2010. http://theses.gla.ac.uk/2153/.
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Article one of the First Protocol to the European Convention on Human Rights (“P1-1”) states that every person is entitled to peaceful enjoyment of his possessions. The role of property interests in allowing political participation had been highlighted during the Second World War, where the Third Reich had weakened political opponents through arbitrary deprivation of possessions. The drafters of the Convention sough to prevent a repeat of this political abuse. However, the political element of property is often secondary to its economic role, in which intervention by the state is necessary and sometimes desirable to allow a national economy to function. How can this inherent conflict in the right to peaceful enjoyment of possessions be resolved? This thesis aims to demonstrate the development of the role of the property right in Europe and the United Kingdom through a critical analysis of the jurisprudence of the European Court of Human Rights and the domestic courts of the United Kingdom. The central thesis of this research is that, although a framework has been determined within which P1-1 decisions can be taken, there is considerable work to be done in strengthening the parameters of that framework in order to create a protection that, whilst sufficiently flexible to deal with changes in law and society, offers a clearly defined and meaningful safeguard against unnecessary intervention by the state in every context. The conclusion is that a clear decision-making process has been articulated through the European jurisprudence and subsequently adopted with qualified success in the United Kingdom. This process allows for the P1-1 implications of current and foreseeable events to be explored with some degree of certainty. However, the margin of appreciation afforded to states by the judiciary at certain steps of the process, particularly as regards the purported aim of state intervention and the necessity of avoiding payment of compensation in certain situations, compromises the strength of the protection as a whole.
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Maxwell, Douglas. "Rights to property, rights to buy, and land law reform : applying Article 1 of the First Protocol to the European Convention on Human Rights." Thesis, University of Cambridge, 2018. https://www.repository.cam.ac.uk/handle/1810/285096.
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This dissertation examines the application and effect of Article 1 of the First Protocol to the ECHR in relation to Scots land law reform. Chapter one will reflect on why existing rights to property have come to be challenged. Chapter two sets out the human rights paradigm and scrutinises what rights and whose rights are engaged. Chapter three traces the development of A1P1. Chapter four applies the human rights paradigm to contemporary reforms. Chapter five considers the broader effect A1P1 has had on domestic property law. This dissertation submits that the problem to be overcome is that, in many instances, Scots land law reform has been reduced into a simplistic struggle. A1P1 has been held up as either a citadel protecting landowners or as an ineffective and unjustified right to be ignored. At the core of this debate are competing claims between liberal individualist rights to property and socially democratic, egalitarian goals. This dissertation argues that it is important to move beyond this binary debate. This is not about finding some mysterious "red card" or eureka moment that conclusively shows compatibility or incompatibility. Instead, compatibility will be determined by following a rule-based approach that values rational decision-making and the best available evidence, as well as the importance of democratic institutions. As such, it will be illustrated how future challenges are likely to focus not on the underlying purpose of land law reform but on the macro or micro granularity of Ministerial discretion. In coming to this conclusion, it will be argued that A1P1 has a pervasive influence on the entire workings of all public bodies and, like a dye, permeates the legislative process.
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Singer, Sarah. "Exclusion from refugee status : terrorism and the UK's interpretation and application of Article 1F of the 1951 Convention relating to the status of refugees." Thesis, Queen Mary, University of London, 2014. http://qmro.qmul.ac.uk/xmlui/handle/123456789/27209.
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This thesis examines whether and in what ways 'terrorism' has featured in the UK's interpretation of Article 1F, the 'exclusion clause' of the 1951 Refugee Convention, and how the provision is applied to suspected terrorists in the practice of decision makers. This research draws on a number of sources, including Freedom of Information requests, questionnaires and interviews conducted with immigration judges, the Home Office's exclusion unit and legal practitioners. All reported UK cases concerning Article 1F were analysed, as were the Home Office's asylum guidance documents, primary and secondary UK legislation and international legal sources pertaining to exclusion from refugee status. This research therefore provides an unprecedented and thorough analysis of whether and how terrorism is being employed in the interpretation and application of each of the individual limbs of Article 1F. Although there has been a clear governmental and political drive to ensure that refugee status is not granted to terrorists, this research reveals that the predominant practice of both courts and tribunals in the UK and the Home Office's exclusion unit has not been to focus on whether an individual is a 'terrorist', but instead whether they have committed a serious crime within the meaning of Article 1F. Where the term 'terrorism' has been employed, courts and tribunals have looked to international rather than domestic definitions of the term in order to arrive at an 'autonomous meaning'. While there has been an increase in the application of Article 1F in the UK over the last decade, in practice the use of the provision has remained exceptional and appears to be subject to a fair degree of rigour. Nevertheless, a number of recommendations are made by which the quality of decision making could be improved and a greater degree of fairness added to the exclusion process in the UK.
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Sahabodien, Waleed. "An analysis of the Murabahah Islamic Finance Instrument in the context of article 11 of the OECD model tax convention on income and capital." Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/29164.
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Conventional banking and finance is based on interest-bearing loans or investments, or
equity financing arrangements. Islamic banking and finance provides equivalent
functionality to conventional finance except that the underlying arrangement is based on
the trading of assets, profit and loss sharing investments or leasing arrangements.
International business and trade has evolved over time and contemporary transactions and
methods of providing cross-border funding has undoubtedly become more fluid and
complex in this regard. So much so that non-traditional sources of financing have become
more prominent as a viable alternative where we have seen a considerable increase in their use. This is evident with the steady growth and expansion of Islamic finance within the
wider umbrella of the ‘Islamic Economy’. Importantly, multi-national enterprises are indeed open to diversifying their funding. This is however complimentary to the primary
demand for these services from a growing global Muslim population. Article 11 governs the taxation of cross-border debt financing where the focus is in essence on the taxing rights allocated between the source and resident state respectively. In practice it appears to be a rather settled article where very few meaningful amendments have been made since its inception. The formulation and policy is based on historical factors and an agreed upon balance established at that time. With the introduction of non-traditional financial arrangement such as Islamic finance, we now perhaps see this historical balance being somewhat disturbed. It is important to note that it is an express purpose of international tax treaties to facilitate cross-border trade and ensure the economic exchanges are as seamless as possible in respect of taxation matters. Whether the incorporation of non-traditional financial instruments in article 11 could indeed reduce the risk of double taxation or double-non taxation remains to be seen, and it is not the objective of this paper to speculate on these aspects. Rather, this dissertation seeks to analyse the position of Islamic finance with regards to the Organisation for Economic Co-operation and Development “OECD” Model Tax Convention and whether uncertainty is created under article 11 and a ‘debt-claim’.
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Longwe, Abel. "From Persecution to Detention: A reflection on the non-application of Article 31(1) of the 1951 Refugee Convention on asylum seekers in Zambia." Master's thesis, Faculty of Law, 2021. http://hdl.handle.net/11427/32778.
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Despite Zambia's ratification of several of international and regional human rights instruments, the country's domestic legislation frustrates its international obligations in so far as protection of asylum seekers human rights is concerned. Principally there are two main pieces of legislation which create this ‘quagmire,' but also make provision for the entry and exit of persons in Zambia, these are the Immigration and Deportation Act No. 18 of 2010 (hereinafter referred to as the Immigration Act) and the Refugees Act No. 1 of 2017 (hereinafter the Refugees Act). Although these two pieces of legislation apply to different types of migrants, there is a predisposition on the part of the authorities of enforcing immigration laws and not refugee laws on asylum seekers especially those found unlawfully present in country. This is in contravention of the non-penalisation clause under the 1951 Convention Relating to the Status of Refugees (hereinafter the 1951 Refugee Convention), which creates a dilemma for asylum seekers. Zambia has an international obligation to receive and not to expel asylum seekers present within its territory irrespective of their mode of entry, this responsibility emanates from Article 31(1) and Article 33(2) 1951 Refugee Convention. However, the misapplication of the Immigration Act on asylum seekers conflicts with this obligation.
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McGrath, Frank Roland. "The intentions of the framers of the Commonwealth of Australia Constitution in the context of the debates at the Australasian Federation Conference of 1890, and the Australasian Federal Conventions of 1891 and 1897-8 The understanding of the framers of the Constitution as to the meaning and purpose of the provisions of the Constitution which they debated at these assemblies /." Connect to full text, 2000. http://hdl.handle.net/2123/850.
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Thesis (Ph. D.)--University of Sydney, 2001.<br>Title from title screen (viewed Apr. 24, 2008). Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy to the Dept. of History, Faculty of Arts. Degree awarded 2001; thesis submitted 2000. Includes bibliography and of tables of cases. Also available in print form.
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Ghazi, Ghasem Z. "Critical analysis of the freedom to manifest religious belief under Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms." Thesis, University of Huddersfield, 2018. http://eprints.hud.ac.uk/id/eprint/34744/.
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One of the key causes of disharmony on a global scale, throughout human history, has been the disregard for the protection of religious expression. This goes some way to explaining why the international community in the post-war era, particularly after World War II, have enacted legal instruments and implemented policies aimed at promoting religious freedoms at global and regional levels. Regionally, the ECHR with implementation mechanisms has led the way in terms of upholding the protection of religious rights and freedoms. Having progressive and effective mechanisms to protect human rights does not mean that decisions of the ECtHR as a judicial body are free of criticism. For example, the ECtHR has ruled in the number of cases against the practice of religious expression, particularly in cases relating to the wearing of the headscarf. These decisions, the ECtHR argues, were taken on the grounds of secularism and prevention of fundamentalism and intolerance. This research, unlike others written on the subject, examines the concepts of fundamentalism and tolerance through a historical and philosophical approach, which will be used to argue that a restriction on the headscarf cannot legally or logically be justified as the bases used by the court to provide a rationale for the rulings are undefined, ambiguous and often in conflict with the principle of religious expression. The ECtHR often prioritises national policies and political considerations such as secularism over the personal right to freedom of religious expression. Notably, recent polices in Turkey which now allow and encourage the wearing of headscarf in public places call into question the validity of previous judgments of the ECtHR supporting the ban on wearing of the headscarf. As a part of the qualitative methodology the researcher has chosen three methods to conduct this research including black-letter, historical and comparative themes. This thesis is critically analysis ECtHR cases relating to freedom of religious expression in the context of the wearing of the headscarf. In doing this thesis further explores the relationship between Article 9 ECHR, the wearing of the headscarf, and the concepts of fundamentalism and intolerance. The researcher argues that the link between the wearing of the headscarf and intolerant or fundamentalist behaviour is a difficult one to prove, and that by supporting the ban on wearing of the headscarf on grounds including intolerance, the ECtHR’s decisions are in effect validating intolerance of religious expression.
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Tomsson, Viktoria. "The Effectiveness of the Convention on the Rights of the Child : Examined through a legal assessment of Ghana’s implementation of Article 35 concerning Child Trafficking." Thesis, Stockholms universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-182509.
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The aim of this thesis is to examine to what extent the Convention on the Rights of the Child may be regarded as an effective instrument for a state’s aim to abolish child trafficking. An underlying aim is to examine what factors make a convention effective in general. The study is conducted through a doctrinal method with a legal sociological perspective, examining the normative aspects of law. In this sense, Ghana’s implementation of Article 35 of the CRC is evaluated, in order to reach the objective of the study. Thus, the Ghanaian legal system constitutes the base upon which the analysis is made. Hereby, the effectiveness of the CRC is measured by the extent to which the commitments made by Ghana, have led to the adoption of concrete measures to improve the rights of children as it pertains to child trafficking, since the ratification of the CRC. An underlying aim is to discover what factors may affect the effectiveness of a convention, such as inadequate legal framework, its application of it or other cultural factors. In order to measure the effectiveness of the CRC, a normative model is applied, explaining both the notions of compliance versus effectiveness. Herein, it is clarified that: in order to measure the effectiveness of a convention in this matter, one first needs to examine if the national legal framework complies to the convention in question. Thus, in the first part, it is concluded that Ghana has successfully incorporated the CRC in its legal framework. In the second part, it is shown how, despite of the effective incorporation of the CRC, there remains a gap between what is prescribed by law and the manifestation in practice. Different factors have been concluded to influence the effectiveness of the Convention. In order for a state to implement measures to deal with an issue, there must be a clear standard set out in the convention in the first place. In this regard, it has been noted that the lack of clarity and ambiguity of the wording in Article 35 of the CRC may have affected the effectiveness of the convention. Moreover, it is noted that the nature of the issue: the phenomenon of child trafficking, in itself, is a complex issue with certain elements that makes it more challenging to regulate than “normal” human rights violations. Not least, it is proven how the socio-cultural norms of Ghana have a noticeable effect on the implementation of the Convention. At last, it is demonstrated how the process of norm-internalization in a state may affect the effectiveness of a Convention: it has been shown how Ghana’s policy-making system has not been effective in practice. Nevertheless, the conclusion remains: the effectiveness of a convention depends on the function it serves in the first place. As for the case of the CRC, it remains an effectivetool to abolish child trafficking as long as the States Parties take united responsibility to make it so.<br>Syftet med denna uppsats är att undersöka i vilken utsträckning barnkonventionen (CRC) kan utgöra ett effektivt instrument för en stats ändamål att avskaffa barnhandel. Ett bakomliggande syfte med studien är att utreda vilka faktorer som gör en konvention effektiv generellt sett. Studien baseras på en rättsdogmatisk metod i ljuset av ett rättsociologiskt perspektiv där de normativa aspekterna av lagen undersöks. I detta avseende utvärderas Ghanas implementering av artikel 35 i CRC för att uppnå syftet med studien. Således vilar den rättsliga analysen på det ghananska rättssystemet som grund. I sammanhanget granskas barnkonventionens effektivitet med avstamp i hur de åtaganden som gjorts av Ghana har lett till vidtagande av konkreta åtgärder för att förbättra barns situation vad gäller barnhandel. En normativ modell tillämpas för att förstå vad begreppen effektivitetoch efterlevnadinnebär i sammanhanget. Här klargörs att, för att mäta effektiviteten av en konvention, måste det först undersökas huruvida det nationella regelverket uppfyller de reglerade skyldigheterna i den ifrågavarande konventionen. I den första delen dras slutsatsen att Ghana har införlivat barnkonventionen på ett tillfredsställande sätt. I den andra delen redovisas det hur det kvarstår en diskrepans mellan vad som föreskrivs i lag och hur lagen manifesteras i praktiken, trots det effektiva införlivandet av barnkonventionen. Det påvisas hur olika faktorer påverkar en konventions effektivitet. I detta avseende noteras det att (bristen på) tydlighet och klarhet i ordalydelsen av artikel 35, kan påverka konventionens effektivitet. För att en stat ens ska kunna genomföra åtgärder för att hantera en viss fråga måste det finnas en tydlig standard i konventionen i första hand. Vidare noteras det att problemets natur: fenomenet barnhandel i sig, är en komplex fråga med vissa element som gör det mer utmanande att reglera fenomenet än ”normala” kränkningar av mänskliga rättigheter. Inte minst anmärks det hur de sociokulturella normerna i Ghana har en märkbar effekt på tillämpningen av barnkonventionen. Slutligen redogörs det för hur olika norminternaliserande faktorer i en stat kan påverka effektiviteten av en konvention: det redovisas hur Ghana brister i författandet av effektiva ”policies” för att åtgärda problematiken. Slutsatsen påvisar hur effektiviteten av en konvention beror på den funktion som konventionen har i första hand. Vad gäller barnkonventionen, utgör den ett effektivt verktyg i kampen mot barnhandel, så länge som medlemsstaterna faktiskt tar enat ansvar i att säkerställa dess effektivitet.<br>Minor Fields Studies, SIDA
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Leclercq-Delapierre, Delphine. "La protection de la vie privée au regard de l'article 8 de la Convention europeenne des Droits de l'Homme." Rouen, 2002. http://www.theses.fr/2002ROUED003.
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Westlund, Martin. "The development of the right to privacy under the ECHR : A study on the effect of Article 8 on third parties." Thesis, Uppsala universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-363668.
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Hussein, Bozang. "Article 9 - The Right to Freedom of Thought, Consience and Religion : A study on whether banning of religious symbols in order to preserve the principle of secularism can be justified under article 9 of the European Convention on Human Rights." Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2013. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-32673.
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The tension between the banning of religious symbols and the principle of secularism is the subject of this study. The presence and visibility of religious symbols in the public sphere has given raise to a debate around Europe. Within the member states of the Council of Europe the role of religion differs and the principle of secularism is interpreted differently. The right to freedom of thought, conscience and religion is provided for in article 9 of the European Convention on Human Rights under which the right to manifest religion or belief is protected. This right is of fundamental character and cannot be derogated from. The right to manifest religion or belief however can be subject to limitations under given conditions. The case law of the European Court of Human Rights indicates that member states has been left with a wide margin of appreciation in dealing with the freedom of religion and regulations falling under this right. The Strasbourg Court has accepted that the protection of secularism can be a justified ground for banning religious symbols. However, this is an interference with the right to express and worship one’s religion or belief and there is a need to strike a balance between the public interest and the interest of the individuals and determine whether such interference is necessary in a democratic society. This thesis discusses two values of fundamental character, on the one hand the right to freedom of religion and on the other hand the principle of secularism as a constitutional value. With regard to this, the application of the margin of appreciation is of relevance to consider. The author of this thesis argues that the role of the Court is to ensure that domestic laws are not in conflict with the Convention rights and thus that it shall not take any position on whether or not symbols shall be prohibited. The role of it shall be to secure that interference with article 9 by state authorities does not extend the conditions provided for in the Convention.
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Torla, Areej. "The application of Article 76 of the United Nations Convention on the Law of the Sea on the extended continential shelf, with special reference to Malaysia." Thesis, Brunel University, 2013. http://bura.brunel.ac.uk/handle/2438/14240.
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The purpose of this study was to clarify the ambiguity in the law relating to the extended continental shelf in Article 76 of the 1982 United Nations Convention on the Law of the Sea. Another aim was to study the application of the law in a more focused part of the world, the region of East Asia, and in particular, Malaysia. The study also sought to propose solutions to issues relating to the extended continental shelf. The history of the law relating to the continental shelf, the codification of the law, and the enforcement of the law by the Commission on the Limits of the Continental Shelf is presented. Besides that, Article 76 was also thoroughly discussed in order to identify the problems involved. Besides that, the two biggest issues which determine the outer limits of the continental shelf are examined. These are issues relating to ridges and submarine elevations and the application of the foot of continental slope provisions. The study examined the problems involved with the legal and scientific interface found in Article 76 and addressed them by referring to the legislative history of Article 76, State practice and the practice of the Commission. The continental shelf in the East Asian region is also analysed in order to provide an overview of the continental shelf issues in the region. Special reference to Malaysia is made as a State that has made a submission on its outer limits of the continental shelf. A thorough analysis was made based on the findings made in this study. This study also explored possible solutions to the continental shelf issues discussed.
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Huang, Yi. "The implementation of Article 12 of the UN Convention on the Rights of Persons with Disabilities in China : understanding and reforming relevant law and legal culture." Thesis, University of Leeds, 2016. http://etheses.whiterose.ac.uk/17102/.
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This thesis is centred on Article 12 of the Convention on the Rights of Persons with Disabilities (the CRPD) - equal recognition before the law - and its implementation at the national level in China. Based on an in-depth understanding of Article 12 and the empirical research conducted in China regarding the relevant Chinese legal culture, this thesis closely examines the challenges concerning the implementation of Article 12 in China and the symbiotic relationship between the implementation of Article 12 in China and the relevant cultural context. It begins by developing a framework to theorize the implementation of Article 12, a piece of international human rights law, at the national level. Based on this theoretical framework, the full implementation of Article 12 at the national level necessitates an in-depth understanding of Article 12 and the relevant cultural context. The meaning, implications, and values of Article 12 should be fully rendered at the national level in a culturally sensitive way to ensure that they can be fully understood and effectively utilized by local people. By conducting analysis of both Article 12 and relevant Chinese law, this thesis identifies some of the fundamental gaps between the current Chinese law on legal capacity and adult guardianship and Article 12. By conducting and analyzing the empirical research of relevant legal culture in China, this thesis examines the legal culture-related challenges that should be taken into account in the implementation of Article 12 in China. Drawing on the analysis of Article 12 and relevant Chinese law and legal culture, this thesis reflects on reforming the domestic law to transpose Article 12 at the national level in a culturally sensitive way and the potential social changes that could be fostered by the implementation of Article 12.
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Paulino, Maria de Fatima Rodrigues da Silva. "Argumentação e cidadania no artigo de opinião em sala de aula." Universidade de São Paulo, 2015. http://www.teses.usp.br/teses/disponiveis/8/8162/tde-17112015-113320/.
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A presente pesquisa tem como objetivo investigar as atividades do professor com gêneros argumentativos em sala de aula e analisar em que medida a preparação dessas atividades contribuem com a escrita do gênero artigo de opinião por alunos do 9º ano do Ensino Fundamental de uma escola pública do Estado de São Paulo. Seguindo os preceitos dos PCNs e do Currículo do Estado de São Paulo, adotou-se a língua como objeto de estudo da disciplina de Língua Portuguesa, assim como as concepções de gêneros discursivos apoiadas em Bakthin (2003), Marcuschi (2008) e Rojo (2000). Em relação à organização do trabalho pedagógico, apoiados nas orientações de Schneuwly e Dolz (2004) planejou-se uma sequência didática para a produção de artigo de opinião. Tomou-se como produção inicial e produção final as avaliações externas aplicadas, respectivamente, no primeiro e segundo semestre, as AAP (Avaliação de Aprendizagem em processo). As atividades dos materiais didático-pedagógicos utilizados foram selecionadas procurando atender a reflexão sobre as características do gênero formuladas por Rodrigues (2000) Brakling (2000) e outros autores pesquisados. Quanto às estratégias de ensino de produção textual escrita, recorremos a Antunes (2003) e Geraldi (1991), evidenciando as etapas de planejamento e preparo para a produção escrita. A análise das produções, dentro de uma perspectiva enunciativa e interacionista da língua, procurou evidenciar os recursos linguísticos-discursivo empregados pelos alunos para a construção da argumentação. Para melhor compreender o uso desses recursos argumentativos recorreu-se à Retórica de Aristóteles associando-se aos estudos da Nova Retórica de PERELMAN & OLBRECHTS-TYTECA (1996). Os resultados da pesquisa demonstram que há uma relação direta entre as escolhas teóricas para a organização do trabalho pedagógico e a melhora da qualidade de escrita dos alunos. Confirmou-se também a hipótese da relevância do ensino dos gêneros argumentativos, pois os alunos-autores demonstraram um posicionamento crítico em relação aos temas abordados nas produções textuais. Houve ganhos quanto à organização e produtividade textual, efeito das atividades de leitura e alimentação temática, mas por outro lado, as fragilidades das atividades específicas para a construção do gênero, aliados aos problemas relativos às propostas sugeridas apontam para uma reorientação do trabalho com o gênero artigo de opinião.<br>This research aims to investigate teacher-proposed classroom activities involving argumentative genres and analyze the extent up to which the preparation of those activities contribute to the writing of opinion articles of 9th-graders of a public school run by São Paulo state. Based on the National Curriculum Parameters and on the Curriculum of the State of São Paulo, language was embraced as the study object of the discipline Portuguese, along with the conceptions of discourse genres by Bakhtin (2003), Marcuschi (2008), and Rojo (2000). Regarding the organization of the pedagogical work, a didactic sequence based on Schneuwly and Dolzs (2004) guidelines was planned aiming at the writing of an opinion article. The external Evaluations of Learning in Process in the first and in the second semesters were taken respectively as initial and final production. The activities in the didactic-pedagogical materials were selected when in keeping with the reflections on the characteristics of the genre opinion article proposed by Rodrigues (2000), Brakling (2000), among others. As to the teaching strategies of written production, the research resorted to the works of Antunes (2003) and Geraldi (1991), making evident the planning and preparation stages of the written production. The analysis of the productions, from an enunciative and interactional perspective of language, sought to reveal the linguistic-discursive strategies used by students in the construction of argumentation. In order to better understand the use of those strategies, Aristotles Rhetoric was resorted to, as well as the New Rhetoric, by Perelman and Olbrechts-Tyteca (1996). The results of the research suggest that there is a direct relation between the theoretical choices for the organization of the pedagogical work and the improvement observed in student writing. The teaching of argumentative genres proved relevant, as student-authors were able to take a critical stand towards the topics of the written assignments. Improvements were observed regarding text organization and productivity an effect of the reading and topic-related activities; on the other hand, the weak points of the specific activities for genre construction, alongside the problems related to the suggested plans, point to the reorientation of the work with opinion articles.
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Tentoni, Lorrayne. "Intimate Partner Violence on Immigrant Women in Sweden and Portugal : (An analysis of the application of the article 59, I of the Istanbul Convention in both Countries)." Thesis, Umeå universitet, Juridiska institutionen, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-163340.
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Ruiters, Jesse-Scott Ranier. "The impediment of non-conformity of goods, as an excuse under Article 79 of the United Nations Convention on contracts for the international sale of goods (CISG)." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/16868.
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Includes bibliographical references<br>The focal area of research is to ascertain, if whether the delivery of non-conforming goods, may or may not exist as an excusable impediment under Article 79 of the CISG? To determine this I have taken a different approach, than that, of the more conventional approach of critiquing the prevailing arguments. Essentially by analyzing the commentary of the relevant Advisory Council Members as well as other major contributors to the debate, of which one argument finds its basis on legislative intent of the negotiating parties (Travaux preparatoires) and the other being ascertained on a purely textual interpretation of Article 79. In order to reach a more precise conclusion, the author of this dissertation has funneled these two arguments through the different interpretative methods of treaties to discern which of the two arguments should be regarded as the more appropriate choice, which should be adopted. The existing question therefore would be, should we find a definitive conclusion with the fact that negotiators to the Sales Convention have decided that the delivery of non-conforming goods should not be excused under Article 79? Or should we side with a purely textual approach? Based on the phrase 'failure to perform any of his obligation', the words "any" and "obligation" would consequently include the obligation of the seller to meet the level of conformity as expressed under the contract according to Article 35 of the CISG.