Magister Legum - LLM / South Africa

Doctor Legum - LLD / Within the context of South Africa‘s diverging religious, cultural and social backgrounds, new questions on the nature of a multicultural society are raised from the perspective of human rights. The universality and indivisibility of human rights are challenged by this diversity and consequently implies that standards, concepts and structures for implementation have to be reconsidered. International and national standards are being (re)interpreted and attention is not only focused on the contents of the norms but on the limitations imposed thereupon. The debate on whether limits should be set in permitting or accommodating cultural or religious pluralism is becoming extremely relevant. The manner in which these questions are responded to is even more prominent in the light of our history of apartheid which has disregarded respect for religious and cultural diversity. In the scope of this research emphasis will be placed on the right to freedom of religion and in particular the limitation of the right to religion in an attempt to balance conflicting rights and accommodates religious diversity. The right to freedom of religion albeit constitutionally entrenched is subject to reasonable and justifiable limitations. However, no clear guidelines have been formulated on the criteria for limiting the right to freedom of religion. The main aim of this research is to find guiding criteria to facilitate the imposition of limitations on the right to freedom of religion. The limitations of the right to freedom of religion are interrelated with the following research questions: Firstly, the definition afforded to the right to freedom of religion in accordance with national and international standards; secondly, the relationship between culture and religion and any interconnection that exists between these rights. This is followed by the influence of the particular value framework or normative commitments f the judiciary on the interpretation of the right to religion, as well as the relationship between the state and religion. The above issues will be researched both on a national and an international level. The aim is to conduct research that will build on an appreciation of the guidelines that should be employed in ensuring the protection of the right to freedom of religion. To this end comparisons will be drawn with other legal systems, which on the one hand acknowledge the protection of the right to freedom of religion and on the other hand have to find ways in which the right can be balanced in the event of conflict. It is envisaged that the research of the criteria imposed on the limitation of the right to religion both on a national and an international level will assist in suggesting criteria that will influence scholarly debate on the topic. In addition that this debate will allow for the formulation of a transformative approach within the South African context that sanctions the celebration of diversity in all its aspects and in particular the right to freedom of religion. / South Africa

As a leading cause of disability that often leads to death, chronic obstructive pulmonary disease (COPD) can be characterized as both a chronic illness and a life-threatening one. As a result, the experience of individuals with COPD can include psychological concerns that are associated with both rehabilitation and palliative care. At the same time, the often-uncertain trajectory of COPD obscures a clear transition from rehabilitation to palliative care. It is not surprising, therefore, that treatments aimed at addressing patients’ rehabilitative and palliative needs largely proceed independently of each other. This dissertation contains two studies conducted with patients participating in a pulmonary rehabilitation program for COPD (N = 242). Separately, each study stems from a research tradition grounded in either the rehabilitative or palliative approach to treatment. Together, the studies highlight an opportunity for a model of more integrated care. Study 1 is derived from the rehabilitation literature and focuses on the issue of “catastrophizing” about breathlessness. Catastrophizing is characterized by a magnification of a symptom’s threat value, rumination about its perceived negative impact, and a sense of helplessness in addressing it. In some medical conditions with a primary symptom, such as chronic pain, catastrophizing demonstrates a strong relationship with the development of disability. Study 1 examines whether this relationship is found in the context of breathlessness. The study also reports the initial validation of the Breathlessness Catastrophizing Scale (BCS) as a means of assessing this phenomenon. Study 2 has its conceptual basis in the palliative care literature and highlights patients’ existential concerns around loss of dignity. Loss of dignity is a central construct in recent health care debates, because it is a primary reason underlying the requests of terminally ill individuals to seek medically hastened deaths (i.e., euthanasia or assisted suicide). Until now, however, loss of dignity has only been examined among patients with cancer. Study 2 examines whether loss of dignity is as prevalent among those with advanced COPD, and whether it improves with treatment. In Study 1 the BCS was found to be a reliable measure of breathlessness catastrophizing, with good convergent validity and sensitivity to change. Interestingly, it appears that breathlessness catastrophizing need not be a barrier to functional improvement in COPD. In Study 2, a “fractured” sense of dignity was found among 13% of patients with advanced COPD, suggesting that it is at least as prevalent as among those receiving palliative cancer care. It was also evident that loss of dignity is amenable to change with appropriate rehabilitation. This finding is important for societal debates regarding the provision of medically hastened deaths, which are often described as offering “death with dignity”. Together these studies demonstrate that in an interdisciplinary environment, such as the pulmonary rehabilitation program, not only is collaboration possible, but the distinct rehabilitative and palliative needs of patients can be met.

The purpose of this study was to investigate whether elderly clients in an acute care setting perceived themselves as being treated with dignity and respect, and whether clients with a higher socioeconomic status are more likely than clients with a lower socioeconomic status to be treated with dignity and respect. Sixty-two elderly clients who had been in hospital at least five days, were alert and oriented during their hospitalization, and could speak English were selected for the study. Using a convenience sampling technique, the clients were selected from medical and surgical units of two major teaching hospitals. They were interviewed within three days after discharge to respond to items on a questionnaire selected from the Medicus Quality Assurance Tool. The results of the study show that elderly clients may not perceive that they are consistently treated with dignity and respect. Older clients (75+ years) are less likely than younger older clients (65-74) to be treated with dignity and respect, and elderly clients with a lower socioeconomic status and women, are less likely to be treated with dignity and respect. / Applied Science, Faculty of / Nursing, School of / Graduate

Made available in DSpace on 2017-06-01T18:18:35Z (GMT). No. of bitstreams: 1 ivna_cavalcanti_feliciano.pdf: 1118328 bytes, checksum: d3cf935c2a5623dac9991c21ec6fa4eb (MD5) Previous issue date: 2015-10-26 / This actual work travels a linear path related to the cause of people with disability, from invisibility to visibility of them, starting from a historical, political and social shadow, to the emancipation through an isonomic effort, as subjects of rights. We tried to speculate on the hegemonic character of the theory of Human Rights, and the ideal of human dignity perpetrated by this theory, from the perspective of disabled people. We aimed understanding the integrationist paradigm established in a clinical medical model of disability in opposition to the inclusive paradigm, based on a social model that aims to resize the knowledge of disability as a burden of society. Capture the contribution of the Convention on the Rights of Persons with Disabilities for the sedimentation of the inclusive paradigm domestically and internationally. We conducted a descriptive exploratory study to identify if the Supreme Court has used the Convention since its internalization in the trial of cases related to persons with disabilities. Finally, we performed a qualitative analysis on identifying the repercussion of the Convention's inclusive commitment in the decisions handed down by the Supreme Court related to it. / O presente trabalho percorre uma trajetória linear referente à causa das pessoas com deficiência, desde a invisibilidade destas, à visibilidade, partindo de uma penumbra histórica, política e social, à sua emancipação através de um esforço isonômico, como sujeitos de direitos. Buscou-se refletir sobre o caráter hegemônico da Teoria dos Direitos Humanos, e do ideal de dignidade da pessoa humana por ela perpetrado à luz das pessoas com deficiência. Objetivou-se compreender o paradigma integracionista fundado em um modelo clínico médico de deficiência em contraponto ao paradigma inclusivo, cunhado em um modelo social que visa redimensionar a compreensão da deficiência como ônus da sociedade. Procurou-se ainda compreender a contribuição da Convenção sobre o Direito das Pessoas com Deficiência na sedimentação do paradigma inclusivo no cenário internacional e interno. Realizou-se uma pesquisa exploratória descritiva para verificar se o Supremo Tribunal Federal tem utilizado a Convenção desde a sua internalização no julgamento das causas relativas às pessoas com deficiência. Por fim, foram analisados de forma qualitativa os reflexos do compromisso inclusivo da Convenção nas decisões proferidas pelo Supremo Tribunal Federal que a mencionam.

Le parcours de soins des personnes transsexuelles relève d’une prise en charge multidisciplinaire comportant des aspects médicaux, sociaux et juridiques. Ces trois pôles agissent en interaction et en complémentarité.En France, le protocole établi par la Sécurité sociale en 1989 impose un suivi psychiatrique des personnes d’au moins deux ans avant qu’elles puissent prétendre à une prise en charge de l’opération de réassignation sexuelle ; ceci dans le but, entre autres, d’évaluer la qualité de leur demande. Ces consultations sont souvent décriées par les personnes transsexuelles qui les trouvent stigmatisantes parce qu’elles associent ouvertement leur trouble à la maladie psychiatrique. Les personnes transsexuelles considèrent que le suivi psychiatrique imposé est une atteinte à leur dignité dans le sens où leur parole se trouve remise en question par des questionnaires et des évaluations, établis par un personnel médical qui ne peut ressentir ce qu’elles vivent. Actuellement, beaucoup de personnes transsexuelles ne suivent pas ce protocole médical recommandé par la Haute autorité de santé (HAS), qu’elles estiment trop rigide et éloigné de leurs besoins ; elles organisent elles-mêmes leur parcours ayant parfois recours à des actes chirurgicaux pratiqués à l’étranger. Pour finir, ce parcours de soins serait incomplet s’il n’était validé par une modification de l’état civil ; ainsi le parcours médical de transformation de la personne se trouve lié à un parcours juridique garant de l’intimité et des droits de la personne.Les origines psychologiques, psychiatriques, biologiques ou génétiques du transsexualisme sont encore discutées, sans qu’actuellement aucune réponse ne puisse être donnée de façon reproductible et fiable ; seules des interrogations sont posées. Dans ce contexte d’incertitudes, les paroles que nous avons recueillies font apparaître une réalité du terrain où la personne est, par la force des choses, au centre de l’acte de soins et heurte la conception scientifique de la médecine par ses choix et ses attitudes. Ces différents parcours de vie nous ont montré combien le respect de la personne dans sa différence, non quantifiable et inclassable, était important. Le respect de l’expertise acquise de la part du patient, le respect de sa vérité, de sa décision et de ses choix, sont des revendications qui sont apparues régulièrement. Par ailleurs, au-delà de l’aide médicale demandée, le besoin d’aide psychologique, de soutien moral et financier dessine le profil de personnes vulnérables qu’il convient de soigner et dont il convient de prendre soin. Toutefois il ne faut pas oublier la violence des actes demandés, les interrogations qu’ils suscitent chez les patients et les praticiens concernés. La décision d’entreprendre tous les traitements médicaux et chirurgicaux nécessaires au bien-être de la personne, si elle est présentée comme une décision personnelle, entraîne dans sa dynamique de nombreux acteurs. Certains choisissent d’adhérer à cette transformation, d’autres se trouvent parfois contraints de l’accepter / The care of transsexual patients calls for a multidisciplinary approach, involving medical, social and legal areas of expertise. These three areas both interact with and complement each other.The French national healthcare system drafted its standards of care in 1989, which require at least two years of psychiatric evaluation before the patient can request that their sex reassignment surgery be paid for by the health system. The purpose of this follow up is to evaluate, among other things, the merits of their request. These consultations are often criticized as stigmatizing by transsexuals, given the overt link these evaluations imply between their condition and mental illness. Transsexuals think that the mandatory psychiatric follow up is an attack on their dignity because their word is put into question by tests and evaluations performed by medical personnel who have no empathy for what they are going through. Currently, many transsexuals do not follow these standards of care, even if recommended by the HAS (Haute Autorité de Santé – the official French health standards organization), as they are considered both too rigid and too disconnected from their real needs. Therefore, transsexuals organize heir own healthcare process and sometimes have their surgery performed abroad. Last but not least, the healthcare process would be incomplete without it ending with the change in their legal identity. The medical transformation is linked in this way to a legal process, which is necessary to guarantee the individual’s privacy and personal rights.Psychological, psychiatric, biological and genetic origins of transsexualism are still subject to debate, and there are no reliable or reproducible answers, only question marks. In this uncertain context, the testimony we have gathered underline the reality of life where the person is inevitably both at the center of a series of medical treatments and a challenge to the scientific conception of medicine, both in their choices and their attitudes.These different life stories, demonstrate how important respect for the difference, unquantifiable and unclassifiable, of these people is. Respect for the expertise that the patient has acquired, respect for his or her sincerity, choices and his decisions are requests that have arisen regularly. Moreover, beyond the medical treatments that are requested, the need for psychological, moral and financial support is part of the profile of that can be drawn of a vulnerable population that needs to receive care and be cared for. We must not forget the “violence” of the procedures that are requested, as well as the questions raised by patients and practitioners. The decision to undergo medical and surgical procedures is necessary to the well being of the person. Even if this decision is presented as a personal choice, many other people are inevitably involved. Some choose to freely embrace this transformation, while others sometimes feel forced to accept it.

The increasing digitalization of society has led to new legal issues related to the protection of personal integrity, particularly the protection of personal data. Digitalization allows for greater possibilities for private individuals to access the personal data of others. As the General Data Protection Regulation (GDPR) is not applicable on treatment of personal data by individuals, there is a risk of a loophole forming allowing breaches of personal integrity committed by individuals.                        This paper clarifies the meaning of the term ‘personal integrity’ in a digital context, focusing on how digital integrity is separate from physical integrity, and which key elements constitute personal integrity, be it physical or digital. The paper also discusses how the term previously has been used in legal documents, notably in the UDHR, the EU Charter (focus on dignity) and Swedish legislation (focus on the personal sphere). Furthermore, the paper examines whether the protection of personal integrity can motivate an infringement of the right to personal autonomy of the individual in question.                        The discussion on personal integrity is followed by an analysis of the protection on a physical and digital level respectively in order to clarify whether the different protections can be considered equivalent, and to what extent it would be appropriate for them to be so. This is done taking into account that strengthening protections of personal information would require limiting the individual’s right to autonomy, which in turn infringes upon their dignity.                       The consequences that can arise by an intrusion of the digital integrity can be serious, wherefore one could argue that the protection thereof should be as strong as the protection from intrusions of the individual’s physical integrity. Should the consequences of intrusion of personal integrity be as strong on both the physical and digital level, then the protection of digital integrity may need to be strengthened. This could potentially require further infringements of the individual’s right to autonomy. Such an infringement must therefore always be preceded by an appropriate proportionality assessment, aiming to find a solution minimizing the total infringement on the rights of the individual.

Magister Legum - LLM / In societies emerging from segregation or division based on the biological factors of race and/ or colour, the centrality (or lack thereof) of race and colour within those legal systems plays a critical role in the progression and transformation of such societies. South Africa is one such society where race was the dividing criterion which saw the population ‘be[ing] turned into races through social practices [during] apartheid….’1 The post-amble to South Africa’s Interim Constitution2 states that the document was to form a: [H]istoric bridge between the past of a deeply divided society…and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour [and] race…. Le Roux asserts that the late Didcott J in Azapo v The President of the Republic ofSouth Africa3 believed that the metaphor of this bridge ‘implied an absolute break between the old and the new’, a transformation that was meant to be achieved by the Truth and Reconciliation Commission (TRC).4 Established by section 2 of the Promotion of National Unity and Reconciliation Act5 (PNURA) the TRC was mandated with ‘promot[ing] national unity and reconciliation…which transcends the conflicts and divisions of the past ….’6 This, as it was envisioned, would facilitate the transition that the Republic was making [from parliamentary sovereignty] into ‘democratic constitutionalism’.7 However, the failing of the TRC in achieving this has not only been seen in scholarly articles to that effect, but also within the argument that the ‘new’ constitutional dispensation is nothing more than the continuation of the previous regime masked only with a different face.8 The retention of racial classification gives prima facie credence to this belief. Adopted into the legal system through the Populations Registration Act of 1950 (PRA), racial classification would thenceforth play a decisive role in the lived experiences of ordinary South Africans.9 The PRA would ‘establish race as a domain of knowledge independent of any particular training or expertise, based on the ordinary experience of racial difference, which ranked whiteness as its apex.’10 This lack of knowledge associated with racially classifying people has resulted in what has been coined the ‘common sense’ approach.11 This approach deems it common sense that one can automatically classify what race another belongs to without having any pre-existing knowledge on how to classify or what the blood lineage of the person being classified was. Initially the categories comprised of ‘White’, ‘Native’ and ‘Coloured’ (with Indians being deemed a subset of the latter)12 however, with the passage of time the categories now reflect as ‘White’, ‘Black’ (or ‘African’), and ‘Coloured’, with ‘Indian’ now being a separate category.13 There has also been the inclusion of the category of ‘Other’14 with ‘Asian’ making intermittent appearances. With the advent of the new constitutional dispensation which focused on achieving national unity and the reconstruction of society,15

The issue of Ukrainian EU membership was highlighted during the 2013-2014 Revolution of Dignity, when Ukrainians emerged on to the streets to protest against then-President Yanukovych’s refusal to sign his country’s Association Agreement with the European Union. Since then, the country has started moving closer to Europe, seemingly as supported by a majority of its population. Meanwhile, Russia has occupied Crimea, and there is a war in the Donbas region of the East. The thesis argues that there are no major regional differences when it comes to attitudes towards the European Union in Ukraine. Some differences could be noted in the South relating to the participants’ attitudes toward Ukrainian independence and travels to non-communist countries during the Soviet era, but this had no apparent connection to attitudes towards the Ukrainian state and the European Union today. Overall, the participants were positive to EU membership for Ukraine, as well as NATO membership, and to these organisations overall. The desire to join NATO seems to be out of a desire to obtain hard security against Russia, and the desire to join the EU seems to both be because of the symbolic value for Ukraine’s status as a ‘truly’ European country, as well as for the developmental benefits.

This study analyzes whether the EU's migration agreement with Turkey and negotiations on a agreement with Libya correspond with the requirements that can be imposed on the EU in regards to respect the rights of refugees. The purpose of this thesis is to provide a critical approach of EU's agreements with these two countries, from a legal and moral perspective. The study contains the central protections for refugees and asylum seekers in international law and European Union law. The moral perspective consists of an independent notion defining the respect for human dignity with regarding perceptions of Elena Namli and Seyla Benhabib. This study shows that EU's agreement with Turkey and negotiations on a agreement with Libya means displacing of EU's responsibility to ensure the protection of refugees. From the agreements it may be concluded that EU’s refugee policy prioritizes security issues over respect for human dignity.