My thesis arose from a sense of frustration that the inequality and breaches of human rights experienced by children and young people were unaddressed within the education settings in which I work. Using Mills' (1959) notion of connecting the 'personal troubles of the milieu' and the 'public issues of the social structure’ I explore my own, and other’s practice, to achieve a range of alternative responses to inequality and breaches of human rights. Exploration of theoretical perspectives shows that different conceptual positions (e.g. equality of condition, Baker et al 2004; capability equality, Sen, 1999; social justice Gewirtz, 1998 and Gerwirtz and Cribb, 2002) can be used to reduce inequality and promote human rights. Human rights can be viewed as ‘complex problems’ (Freeman, 2002) in the way they relate to human needs; they are seen as entitlements or obligations and viewing rights as universal is conditional on the nature of an acceptable ethic (Sen, 1999) or a person’s moral nature (Donnelly, 2003). Human rights can be realised through the social relations and struggles to overcome oppression (Landmann, 2006). Such conceptualisations support practitioners in understanding the operation of human rights. Using qualitative research methodology I conduct a series of case studies that emerged from the dilemmas within my own practice. As an 'insider researcher' (Costley, Elliott and Gibbs, 2010) I use interview and participant observation as tools to collect data revealing multiple narratives and perspectives on each case (Holliday, 2007). Through a journal I explore the tensions in the relationship between researcher and practitioner; I analyse experiences by considering them as ‘problematic, routine or ritual like’ (Denzin, 1989) and this brings new perspectives on my struggles to address injustice. My findings suggest that practitioners display a sense of ‘moral ambiguity' (Bauman, 1993) or ‘moral stasis’ (Mills, 1959). I argue discourse obscures and validates (at an institutional level) inequality and breaches of human rights. Some practitioners resisted the dominant negative discourses and presented alternative responses; others retreated into their personal space where they protected the familiar and struggled to challenge a negative discourse. They positioned the unfamiliar as the ‘other’, the ‘stranger’ or the ‘vagabond’ (Bauman 1993, 1997). Alternative responses could be formed through opportunities for debate and discussion by moving from the ‘mass’ to the ‘public’ (Mills, 1956). Practitioners' engagement in narratives of injustice (Osler and Zhu, 2011) enables greater understanding of injustice, inequality and rights. As a result practitioners problematize issues and identify actions realisable within their own realm of practice (Gewirtz and Cribb, 2002 and Sen, 2009).

No description available.

The thesis considers the expansive interpretation of established human rights law from the provincial, domestic, regional and international legal spheres to protect environmental features crucial to the continued existence of indigenous cultures. This is achieved through the use of the issues surrounding the extraction of the 'tar sands' of Alberta, Canada and the indigenous populace of the province.

Participation and rights fit together, right? The right to participate is a universal human right. Participation, accountability and inclusion are central principles underlying the universal declaration of human rights, and taking a human rights-­‐based approach to development means that ‘beneficiaries’ become active participants in their development process. But how do these two approaches to development actually interact with each other in practice? What happens when a bottom-­‐up approach to development is brought together with a universal concept of human rights? What are the trade-offs an INGO committed to participation would need to make in order to engage in rights-based practice? This thesis is based on an 'extreme' case, the education work of ActionAid International. ActionAid is an INGO committed to transforming power relations at every level, to strengthening Southern participation in shaping and defining development, and to taking a human rights-based approach to poverty eradication and development. Over the past ten years, ActionAid has been undergoing a process of organisational transformation and decentralisation in order to create the organisational form to pursue its rights-based vision. In doing this, it built on over 30 years experience of local community development and participatory practice. The organisation worked to integrate its rights-based approach with strongly rooted participatory development, but the process was complex. Translating theory into practice was influenced by organisational history, structure and culture, and the diversity of understandings of what a rights-based approach actually consists of. This thesis draws from an analysis of ActionAid’s practice to argue that rather than complementing and extending each other, rights and participation actually exist in tension. My findings suggest that the two approaches pull the organisation in opposite directions, and that this needs to be acknowledged and worked with if INGOs are to pursue a radical transformative approach to development.

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.

No description available.

The case of European offshore carbon dioxide sequestration informs us that the international and European environmental liability frameworks for the protection of the marine environment are developed but several issues remain to be addressed and that they are still not completely ready to accommodate this technology. A detailed look is taken at the status of offshore CCS under public international law: the United Nations Convention on the Law of the Sea, the London Convention, the London Protocol, and the OSPAR Convention. Subsequently, European law is analysed, the CCS Directive and the Environmental Liability Directive in particular. Finally, the liability related to carbon dioxide transport by pipelines is examined.

The protection of fundamental rights by the Court of Justice of the EU ("CJEU") is no longer a marginal issue, but is the central legal and political issue of coming years, to which all roads in EU scholarship lead back. The objective of this thesis will be to trace the evolution of the CJEU's jurisprudence, from the application of the general principles to the CJEU's interpretation of the EU Charter of Fundamental Rights, in a bid to discern the proficiency of the CJEU's methodology. Along the course of this enquiry, the thesis seeks to explicate judicial developments, rules and techniques governing the CJEU's review of EU legislative and administrative action, as well as Member State action when executing EU policy objectives and when derogating from EU law obligations, for compliance with fundamental rights. Interlocking themes addressed include: the nature and function of fundamental rights; the enforcement of fundamental rights in the context of the internal market; the horizontal application of fundamental rights; and the elements of interpretation shaping adjudication. Binding these themes together is the scope and method of fundamental rights protection. Eschewing any notion of a grand narrative, it will be shown that the CJEU's case law and method defy being classified as a natural and linear progression from dark to light, or novice to expert judicial control, in that the CJEU's initial blueprint for resolving fundamental rights cases has been largely unaltered by constitutional developments.

The Viking and Laval cases have reignited persistent concern within the literature, first remarked upon following the Schmidberger ruling, that fundamental rights are structurally subjugated to free movement, within the European Union legal order, by the Court of Justice’s adjudicative methodology. Specifically, criticism has focused on the procedural disadvantage faced by fundamental rights as a result of the Court’s two-stage breach/justification approach. At stage one, a restriction of the applicable market freedom is established. At stage two, the relevant fundamental right is required to ‘defend’ itself against this prima facie unlawful conduct and therefore overcome the evidential hurdles operating at the justification phase, namely, legitimacy of aim, necessity, appropriateness, and general proportionality. It has been frequently argued that this places fundamental rights on the ‘back-foot’. Nevertheless, a two-stage breach/justification model still dominates, even after the extensive criticism that Viking and Laval provoked. Moreover, to date, a large-scale examination of why the Court approaches conflicts between the market freedoms and fundamental rights in this way, precisely why it is problematic, and how it might be overcome, in conformity with the Union’s constitutional requirements, is generally absent from the literature. This thesis seeks to plug this gap. It conducts an essential diagnostic analysis in order to identify the causes of the procedural prioritisation of free movement and the impact of the imbalanced architecture of the Court’s decision-making on fundamental rights. Significantly, it demonstrates that the use of a two-stage breach/justification framework is the product of an historical hangover rooted in the economic foundations of the EU’s predecessor, the EEC. Since the central purpose of the Rome Treaty was economic integration through the creation of a common market, and a key tool in achieving this was the free movement of goods, workers, services/establishment, and capital, it was logical for the Court to employ a method of adjudication that presented conflicting Member State law and policy as a prima facie ‘wrong’ in need of justification. Critically, since the market freedoms were not initially directly effective and could only be triggered by protectionist and/or directly discriminatory Member State conduct, they were generally unlikely to interact with fundamental rights. However, crucially, the thesis identifies a trinity of significant and overlapping constitutional developments, all of which have contributed to an escalation of conflict between free movement and fundamental rights but which have also, ironically, reinforced the breach/justification framework, and therefore the procedural prioritisation of free movement. Specifically, this constitutional trinity is comprised of: the expansion of the material and personal scope of the free movement provisions; the recognition of the direct effect of the market freedoms; and the introduction of Union citizenship. The thesis also offers an important assessment of the effects of this exacerbation of structural bias from practical, theoretical and Union constitutional perspectives. In particular, a trio of negative consequences emerges from the fact that, under the two-stage model, only fundamental rights, and not free movement, face questions of proportionality. Crucially, this issue is normally assessed by reference to whether there are means of safeguarding fundamental rights that are less restrictive of free movement. This can limit the legal space for the consideration of crucial factors including, first, the need for idiosyncratic rights protection within particular Member States; second, the fact that, in some situations, certain fundamental rights, such as the right to strike, are inherently restrictive of free movement; and, third, that measures less restrictive of free movement will not always be feasible when budgetary or administrative considerations are taken into account. This is especially true of fundamental rights of a programmatic nature. From a theoretical point of view, the structural subjugation of fundamental rights presents a challenge to their status as universal inviolable absolutes that represent the basic needs central to our human dignity. Alternatively, a procedural preference for free movement over fundamental rights undermines the ‘social fact’ of fundamental rights within the EU legal order, which the Treaties explicitly commit the Union to respecting. Indeed, an interrogation of the constitutional implications of the breach/justification framework demonstrates that it is out of line with the EU’s contemporary constitutional framework. In particular, the thesis charts the evolution of the Union’s goals beyond economic integration and notes that, in relation to some of its new objectives, the Treaties confer only shared or complementary legislative competence upon the Union. This necessitates a model that permits the Member States sufficient space to pursue these aims, many of which overlap with fundamental rights concerns, away from the shadow of a breach of free movement. A procedural preference for free movement is also particularly unsuitable in the post-Lisbon era in which the Union is formally obliged to accede to the European Convention on Human Rights and in which the Union’s own Charter of Fundamental Rights enjoys primary law status. Ultimately, the thesis advances a balancing model as an alternative method of adjudication more suited to the Union’s contemporary constitutional requirements. Study of this model is pertinent due to its increasing relevance both in the academic commentary and in the case-law of the Court of Justice concerning rights clashes occurring at the level of secondary Union legislation, and in the approach of the European Court of Human Rights in the context of conflict between Convention rights. A balancing methodology recognises the equal legal status of conflicting norms and seeks to reconcile and find compromise between opposing rules in order to locate an outcome that is least restrictive of both norms. Nevertheless, the commentary to date has not yet dealt fully with the potential practical and conceptual obstacles to adopting a balancing methodology. Specifically, equal legal status does not provide a concrete means of resolving tensions between free movement and fundamental rights when they collide. Moreover, balancing introduces the conceptual question of whether free movement should be treated as (equal to) a fundamental right. The thesis argues that these challenges can be overcome. Specifically, balancing can offer concrete outcomes through a process of reciprocal proportionality assessment whereby the relative impacts of free movement and fundamental rights on each other are analysed. Finally, drawing on the undeniable constitutional significance of free movement within the Union legal order, and its importance to the EU citizen, the thesis argues that free movement should be recognised as a fundamental right within the Union’s own legal framework or, at the very least, as a norm of equal rank.

The rights of children in conflict with the law has always been a central subject of juvenile justice which attracts an intense academic, political and media interest and debate. In this respect, the United Nations Convention on Rights of Children (CRC), which was adopted on 20th November 1989, has laid down international standards and legal framework on rights of children under juvenile justice. The CRC’s standards on this matter have served as a useful guideline and benchmark to state parties in determining and assessing the rights of children in criminal proceedings. As a country that has ratified the CRC in 1995, Malaysia is duty-bound to strive towards full implementation of the requirements of the CRC. This study will specifically focus on examining the legal rights of children in criminal proceedings under both the CRC’s standards and the Malaysian juvenile justice system. Using the CRC’s standards as a guideline and a benchmark, the study aims to assess the rights of children in criminal proceedings under the current Malaysian juvenile justice system. The study will attempt to critically and comparatively analyze to what extent the Malaysian juvenile justice system on the rights of children in criminal proceedings measure up with the CRC’s standards. The study concludes that legal reform of current legal framework and policy is necessary to improve and strengthen rights of children in criminal proceedings under Malaysian juvenile justice system. Aiming towards full implementation of the CRC’s standards on this aspect, the study provides recommendations and suggestions to be considered in respect of certain imprecision and loopholes in laws as well as policy under the existing Malaysian juvenile justice system.