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8305 results in Intersentia

Page 382 of 416

  • Chapter 9 - Two-level legal comparison

  • from PART III - THE LAW AND FORCED MARRIAGE: Legal frameworks concerning forced marriage in Dutch, English and international criminal law
  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 287-306

  • Summary

    INTRODUCTION

    Specific legislation criminalising the act of forcing someone to enter into a marriage is on the rise. During the past decade, many European countries, including Belgium, Norway, Denmark, Germany, Austria and England (as of 2014), have introduced a specific offence of forced marriage in their criminal laws. On the international level, the Sierra Leonean bush wife phenomenon sparked the question of whether forced marriage ought to be classified as a ‘new’ crime against humanity (i.e. as an ‘other inhumane act’), or whether it is caught by existing crimes against humanity such as (sexual) enslavement.

    In the previous two chapters, the legal landscapes of Dutch and English criminal (and civil) law and international criminal law were described; in this chapter, they will be compared with each other on two different levels. The first part of this chapter (paragraph 2) compares the English and Dutch legal landscapes with each other. In England as well as in the Netherlands, the fight against forced marriages is high on the political agenda: MPs and NGOs have examined existing and new measures that could be taken to tackle this phenomenon and discussions on involving the criminal law have resulted in new legislation in both jurisdictions. What will be demonstrated below is the large overlap in available measures when it comes to dealing with (intended) forced marriages. Specific legislation comparable to the FMCPA does not exist in the Netherlands. Nevertheless, as will become evident, there are several comparable measures in Dutch law. Two landscapes that at first glance seem very different, appear, upon closer inspection, to have many similarities.

    The second part of the chapter (paragraph 3) compares the national legal frameworks with the international framework.

    LEVEL 1: COMPARING DUTCH AND ENGLISH LAW

    THE STARTING POINT: A DIFFERENT POLICY AND DIFFERENT LEGISLATION

    The quintessential difference between the legal measures in the Netherlands and in England described in Chapter 7, is that England has specific civil and criminal legislation for dealing with forced marriages and even has a special taskforce that deals exclusively with cases of (threatened) forced marriage. There are several explanations for the differences between the English and the Dutch forced marriage policy.

  • Chapter 8 - Access to Medicines in Uganda

  • from Part III - Country Studies
  • Jennifer Sellin
  • Book:
    Access to Medicines
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 399-436

  • Summary

    INTRODUCTION

    The final and third country study conducted in this research is on Uganda. Uganda is classified as a low income country with a GNI per capita of US$500 (2010); it has a poverty headcount ratio of 24.5% of the population; a life expectancy of 53 years; and an under-five mortality rate of 98.9. Being a least-developed country it has high poverty and morbidity and mortality levels. Even so, it is one of the few African countries that has had declining HIV rates and performs above expected in its response to HIV/AIDS. The costs of antiretroviral medicines to manage HIV have decreased in the last two decades, although they are still unaffordable for many Ugandans. Most medicines are imported from countries such as China and India, and with the TRIPS transition period ending for India prices for second generation pharmaceuticals will most probably rise in the future. This is a serious problem as Uganda has limited drug manufacturing capacity.

    Uganda is a member of the World Trade Organisation since January 1st, 1995, and therefore it is bound by the TRIPS Agreement. However, as a least-developed country, it benefits from the extension of the TRIPS transitional periods which allows it to implement TRIPS (except for articles 3, 4 and 5 TRIPS) until 1 July 2021. Uganda has already started the process of reforming its intellectual property system in order to bring it in line with the TRIPS’ requirements. In that regard, this chapter first examines whether and to what extent Uganda already provides patents for pharmaceuticals. Moreover, the question will posed whether the draft Industrial Property Bill fully implements TRIPS standards and flexibilities with a view to achieving a balance between access and protecting patents within their legal framework.

    This chapter aims to examine the issue of lack of access to medicines from a least-developed country perspective. First, though, a closer look will be had at the problem of lack of access to medicines in Uganda from a least-developed country perspective (section 2).

  • General introduction

  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 1-10

  • Summary

    I begin to sing of rich-haired Demeter, (awesome) goddess – of her and her trim-ankled daughter whom Aidoneus rapt away, given to him by all-seeing Zeus the loud-thunderer.

    THE TOPIC AND THE CENTRAL QUESTION

    THE CENTRAL QUESTION

    ‘Marriage shall be entered into only with the free and full consent of the intending spouses.’ Article 16(2) of the Universal Declaration of Human Rights is clear about how it should be. Yet the words ‘I do’ are not always spoken out of free will: some marriages are the result of deception, manipulation, threats or physical abuse – practices that are generally not associated with the term ‘marriage’. This book is about a phenomenon known as forced marriage: a marriage (i.e. a marital or marital-like association), which at least one of the partners entered into against their will as a result of some form of coercion exerted by another party. More specifically, this research focuses on the criminalisation of this practice on two different levels: the field of Dutch criminal law and the field of international criminal law, with a particular focus on the Rome Statute of the International Criminal Court.

    The study revolves around the following central question:

    Should forced marriage be criminalised under Dutch and international criminal law, and if so, how?

    This research question is divided into three sub-questions:

  • What does the phenomenon of forced marriage entail?

  • What is the doctrinal basis for criminalisation under Dutch criminal law and international criminal law and what are the differences and similarities between these two levels?

  • What is the current legal framework for dealing with forced marriages under Dutch criminal (and civil) law and international criminal law and what are the differences and similarities between these two levels?

    • The central question can be answered after these three questions have been addressed.

  • Chapter 10 - The criminalisation of forced marriage under Dutch law and in the Rome Statute

  • from PART IV - ANALYSIS AND CONCLUSIONS
  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 309-356

  • Summary

    INTRODUCTION

    (How) should forced marriage be criminalised on the levels of Dutch and international criminal law, more specifically the Rome Statute? This question formed the starting point of this research and will be answered in this chapter. The previous chapters served to pave the way by providing a definition, description and legal analysis of the phenomenon of forced marriage, by comparing the Dutch legal framework with the English framework, and by presenting frameworks that may be used as guidance in criminalisation debates. There are certain similarities between criminalisation on the two levels, yet the approaches that are taken in this chapter differ. In the first part of this chapter (paragraph 2), the criminalisation of forced marriage in the Netherlands will be addressed. The principles uncovered in Part II, especially in Chapter 4, will be used as guidelines to structure the arguments contra and pro (separate) criminalisation. The second part of this chapter (paragraph 3) goes into the criminalisation of forced marriage within the regime of the Rome Statute. The specific criminalisation requirements of crimes against humanity, war crimes and genocide will be taken into consideration. For a comparison between the two levels of criminalisation and the forced marriages that take place in times of peace and in times of conflict, see Chapter 3 (paragraph 7), Chapter 6 and Chapter 9.

    THE CRIMINALISATION OF FORCED MARRIAGE AND DUTCH LAW

    INTRODUCTION

    Forcing someone to enter into a marriage against that person's will is a criminal act pursuant to Dutch law. As was argued in Chapter 7, this act is caught by several offences, such as the crimes of coercion, influencing someone's freedom to make an official statement and stalking. Many other European countries have also criminalised the practice and a 2011 European Council Convention requires all states parties who have not yet done so to turn forced marriage into a criminal offence.

  • Chapter 7 - Access to Medicines in India

  • from Part III - Country Studies
  • Jennifer Sellin
  • Book:
    Access to Medicines
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 347-398

  • Summary

    INTRODUCTION

    The second country study conducted in this research is on India. India is classified as a lower middle income country with a GNI per capita of US$ 1,330 (2010); it has a poverty headcount ratio of 37.2% of the population, life expectancy of 65 years, and a under-five mortality rate of 63. India is a WTO member since 1 January 1995. Although still a developing country, India is an up-and-coming economic power house. For years it has made use of the lack of (product) patent protection for pharmaceuticals to copy and produce pharmaceuticals, resulting in it now being one of the largest producers and exporters of generic medicines. However, the end of the transitional periods of the TRIPS Agreement for India in 2005 has lead to significant changes in its patent law. In implementing its TRIPS obligations in several instances it has tried to make use of the flexibilities available, such as for example section 3d of its Patents Act, which attempts to prevent ever-greening. Moreover, although the Indian Constitution protects health as a non-justiciable directive principle of state policy, its extremely progressive judiciary has interpreted the right to life to include health rights, indirectly making it a justiciable right.

    The aim of this country study is to examine whether India has complied both with its obligations under international human rights law and the TRIPS Agreement with a view to achieving a balance between access to medicines and patent protection. Firstly, this chapter will take a closer look at the problem of lack of access to medicines in India (section 2). Thereafter, the question is posed whether India has complied with its obligation under international human rights law with respect to guaranteeing access to affordable medicines by examining the constitutional and legislative framework (section 3); and whether, and to what extent, it has implemented TRIPS’ patent standards and flexibilities (section 4). In addition, TRIPS-plus developments are also briefly touched upon (section 5) before, finally, posing the essential question, namely whether India has been able to strike a balance between protection of patents for pharmaceuticals and access to such pharmaceuticals (section 6).

  • Summary

  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 357-372

  • Summary

    RESEARCH QUESTION

    Specific legislation criminalising the act of forcing someone to enter into a marriage is on the rise. During the past decade, many European countries, including Belgium, Norway, Denmark, Germany, Austria and England (as of 2014), have introduced a specific offence of forced marriage in their criminal laws. On the international level, the Sierra Leonean bush wife phenomenon sparked the question of whether forced marriage ought to be classified as a ‘new’ crime against humanity (i.e. as an ‘other inhumane act’), or whether it is caught by existing crimes against humanity such as (sexual) enslavement. This research focused on the question of whether, and, if so, how the practice of forced marriage should be criminalised under Dutch law and international law (with a particular focus on the Rome Statute of the International Criminal Court). In order to answer this question, the phenomenon of forced marriage was first described, after which frameworks – consisting of criminalisation criteria – were created for the levels of national and international law. After analysing current Dutch, English and international criminal law in relation to forced marriage, these criteria were applied to the practice of forced marriage.

    THE PRACTICE OF FORCED MARRIAGE

    Forced marriages take place all over the world, in times of conflict as well as in times of peace. Universal and regional human rights instruments, such as the UDHR, the ICCPR and the ICESCR, discern the right to marry and the right not to marry without full and free consent. This means that a forced marriage, i.e. a marriage at least one of the partners entered into against their will as a result of some form of coercion that was exerted by another party, constitutes a human rights violation. In many cases, a marriage arranged by parties other than the spouses themselves will be at the basis of a forced marriage. That is to say, an arranged marriage may turn into a forced marriage in those cases where the wishes of the arrangers are not in line with the wishes of the one(s) for whom the arrangements are made, and the former nevertheless force the latter to enter into the marriage.

  • Chapter 6 - Comparing national and international criminalisation

  • from PART II - A TALE OF TWO THEORIES: Criminalisation on the level of national law and international law
  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 185-192

  • Summary

    INTRODUCTION

    In the previous two chapters, criteria for criminalisation on the level of national and international law were discussed. As announced in the General Introduction to this book, the procedure to uncover these principles differs markedly between the two levels. National criminal law has the benefit of being able to draw from a rich tradition of doctrinal discussions concerning the issue of criminalisation. For international criminal law, this is not (yet) the case; rather, acts have been criminalised on an ad hoc basis throughout the years. Whereas the framework for criminalisation on the level of national law contains a number of clear principles, the same cannot be said for international criminalisation. Due to the specific nature of international criminal law – created, mainly, by diplomats and based on consensus – and the regime of the Rome Statute – limiting the ICC's jurisdiction to the crimes listed in the Statute – the criminalisation framework presented in Chapter 5 looks more like a road map of criminalisation than a schematic collection of principles.

    In this chapter, the two ‘frameworks’ for criminalisation are compared to each other. This is done by applying the national criteria listed in Chapter 4 to the international level. This comparison opens up the possibility of cross-pollination between the two levels: some principles that were uncovered as relevant to criminalisation in national law may also be applicable to international law and vice versa. Such a comparison may prove to be fruitful for criminalisation (doctrine) discussions.

    HARM AND WRONG: A HIGHER THRESHOLD

    International criminal law is a special sort of law: it only deals with the worst crimes imaginable. Crimes against humanity are inhumane acts that cause victims great suffering. War crimes are serious violations of the laws applicable in armed conflict. Genocide, the crime of crimes, is aimed at the destruction of a group of people. In other words, it does not get more serious than that. As a consequence, the harm and wrong principles – which are also condiciones sine quibus non for criminalisation in international law – have higher thresholds in international criminal law than on the level of national criminal law. Minor harms and minor wrongs will not, and should not, be codified in the Rome Statute.

  • Chapter 2 - Access to Medicines: the Problem

  • from Part I - Method and Problem Statement
  • Jennifer Sellin
  • Book:
    Access to Medicines
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 21-62

  • Summary

    INTRODUCTION

    The problem dealt with in this dissertation concerns the issue of access to essential medicines by patients in the developing world. The core of the problem is that a great number of patients in developing countries do not have adequate access to essential medicines for a variety of reasons, resulting in a devastating effect on public health world-wide. The research question addressed here is the following: Does patent protection interfere with patients’ access to essential medicines? And, how do we define “interfere”, “access” and “essential medicines”?

    The WHO considers adequate access to medicines a priority health issue and stated that improvement in access to essential medicines and vaccines for patients could result in saving more than 10 million lives within one year. The WHO estimates that the share of people lacking access to medicines has fallen since 1975, when half of the world's population lacked sufficient access to essential medicines to a third of the world's population in 1999. However, due to a rise in the world's population, the absolute number of people lacking access has not changed much and is still at around 1.7 billion. The majority of patients lacking access, around 80% (that is 1.3 billion people) live in low-income countries. Developing countries are disproportionately affected due to high disease burdens, lack of resources, poor health care systems, and no or insufficient research and development targeted at diseases mainly prevalent in developing countries. In the developing world, and especially Sub-Saharan Africa mortality rates are high due to the large number of people falling ill to infectious diseases, like AIDS which is responsible for 19% of all deaths. Other diseases like malaria, pneumonia, diarrhoea, measles and tuberculosis also claim many lives. Although life expectancy rates have increased in the last century, they vary greatly in different regions of the world. It is the developing world that suffers most from these kinds of infectious diseases. Therefore the focus of this dissertation is on access within the context of developing countries.

  • Chapter 3 - A Human Right of Access to Medicines?

  • from Part II - International Framework
  • Jennifer Sellin
  • Book:
    Access to Medicines
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 65-142

  • Summary

    INTRODUCTION

    During the last decade, there has been much debate both within the international and domestic context on the issue of patients’ access, or lack thereof, to essential medicines. This issue has been especially relevant for developing countries, where pandemics like HIV/AIDS have taken hold, with devastating results for their populations, and who are in dire need of good quality medication. Within the human rights field it is often argued that patients have a right of access to essential medicines. Although such a right of access to medicines is not explicitly mentioned in any of the international or regional human rights treaties, it is deduced from the codified human right to health. Moreover, accessibility of medicines is argued to include affordability of medicines. As was shown in chapter 2, in developing countries, which are the focus of this research, high medicine prices curtail patients’ access to essential medicines. In part, these high, and as such possibly unaffordable, medicine prices are ascribed to the 20-year monopoly enjoyed by pharmaceutical corporations patenting new medicines. This link between the patent protection of medicines and patients’ access to such medicines became a topic of much debate and research, particularly after the negotiation and entry into force of the Agreement on Trade-related aspects of Intellectual Property Rights as an annex to the Agreement establishing the World Trade Organisation. Namely, the TRIPS Agreement provides for minimum standards of intellectual property rights, including patents. Not only activists, but also international organisations started to further examine the link between patients’ (lack of) access to medicines as a human rights issue with regard to the minimum patent standards as required by TRIPS.

    Before being able to examine the legal relationship between patents and patients’ possible right of access to medicines, the latter issue must first be situated within the broader context of international human rights protection.

  • Chapter 5 - International criminalisation

  • from PART II - A TALE OF TWO THEORIES: Criminalisation on the level of national law and international law
  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 137-184

  • Summary

    INTRODUCTION

    In this chapter, a framework is constructed that will assist in answering the central research question: should forced marriage be criminalised under international criminal law, more specifically under the Rome Statute and, if so, how? The structure of the chapter resembles a funnel: starting with international criminal law in the broadest sense, the focus is narrowed down to the core international crimes (i.e. crimes against humanity, war crimes and genocide) and then further specified to particular acts listed in the provisions of the core crimes. The first part of this chapter focuses on the doctrinal foundations of international criminalisation: what circumstances raise conduct to the level of an international crime in the first place? As a relatively new field of law, international criminal law does not have the same number of crystallised theories regarding the criminalisation process that domestic legal systems have and over the years, conduct was mostly criminalised on a spasmodic ad hoc basis. It has even been argued that there is – or at least was – no common doctrinal foundation that constitutes the legal basis for international criminalisation. Nonetheless, several authors have made an effort to formulate such a doctrinal basis and these theories will be studied and form the point of departure for the evaluative framework. Next, the taxonomy of international criminalisation and the structure of the core crimes will be highlighted in order to demonstrate the differences between the core crimes.

    After the required knowledge about international criminalisation has been acquired, a road map pertaining to the question of how criminal conduct ought to be criminalised is constructed. This framework focuses on the possibilities of criminalising conduct as a crime against humanity, a war crime and an act of genocide. Because of the focus on three different core crimes, the framework presented in this chapter consists of three parts. Each crime has its own checklist of criteria that must be fulfilled in order for conduct to be criminalised as such a crime, yet some overlap between the criteria does exist.

Page 382 of 416