bluuebunny/crossref_metadata_2025_split huggingface dataset:
Legal Reforms of the Polish Health Care System in View of Accessing the European Union
Authors: Exter  
Published: November 2003

AbstractThe 1980s was a decade of protracted crisis within state socialism in Central and Eastern Europe, most manifestly in Poland. Poland became the trendsetter and model for change not only during the crisis of State socialism but also afterwards, during the pre-transition crisis and breakthrough from one system to another and the first period of democratic transition. Poland, therefore, experienced both the advantages and disadvantages of being a pioneer. This is for instance the case with the health care sector.This paper examines recent legislative changes in the Polish health care system. A descriptive analysis of the current legal framework identifies the main changes that have occurred since the dissolution of the socialist health system. Further research of, in particular, the new Health Insurance Act reveals several discrepancies with respect to its 'compatibility' with European Community law. Since adoption of the acquis communautaire is a prerequisite for accession, the author discusses a main acquis aspect related to social health insurance law, viz the implementation of Co-ordination Regulation 1408/71.
Ageism in the NHS and the Human Rights Act 1998: An Ethical and Legal Enquiry
Authors: Nesbitt  , Sayers  
Published: November 2003

AbstractIn the United Kingdom, the Human Rights Act 1998 came into force on 2 October 2000. This Act has implications for the National Health Service, that are speculative and to date largely untested in the Courts. The area considered here, is the way in which the Act may impact on age discrimination as it relates to provision of health care. Ageist policy and decision-making is analysed in conjunction with the Human Rights Act and Articles 2, 3, 8 and 14 of the European Convention on Human Rights.The rationality of ageism and the justifications used to support its practice are challenged. The equal right to life-saving treatment of elderly patients is defended as inviolable, unless offset by other reasonable considerations, which as argued should not be age per se.
Nosocomial Infection, Physicians and Health Care Institutions: The Present State of French Case Law
Authors: Thomas  , Rougé  , Rial  
Published: November 2003

AbstractInfections acquired in health care institutions are a topic of which professionals and the general public are becoming increasingly aware of. The growing number of lawsuits relating to nosocomial infection increases the anxiety felt by professionals in this domain. With increased emphasis on safety in the field of health, the notion of obligation of safety has made its appearance in French case law.The recent evolution of judicial case law concerning nosocomial infection has far-reaching consequences in terms of liability for health care institutions and physicians. The difference in legal provisions governing the patient in a state-run institution and the patient in a privately-owned institution now no longer exists. The presumption of liability accepted for state-run institutions (1988) and for private institutions (1996) is now replaced by no-fault liability (responsabilité sans faute) and through it the safe-outcome obligation (obligation de sécurité de résultat) for private institutions and physicians in private practice.
Constitutional Rights to Health Care: The Consequences of Placing Limits on the Right to Health Care in Several Western and Eastern European Countries
Authors: den Exter  , Hermans  
Published: November 2003

AbstractThis paper examines the right to health care. Various expressions of this right may be distinguished. These include both individual rights and social rights which could be based upon international treaties and constitutional rights. They may be found in national health legislation and, in some cases, in jurisprudence. To analyze the consequences of limiting the right to health care, a framework for judicial review has been developed which encompasses these expressions of the right to health care. The framework was used to examine legal and health policy developments in three Western and two Eastern European countries. In Italy and the Netherlands the right to health care is protected constitutionally (but on differing legal bases) while the United Kingdom does not have a written constitution. In contrast, Hungary and Poland have for many years seen the state take responsible for the provision, administration and allocation of health care services and the right to health care was guaranteed theoretically but not in practice because of the lack of (financial) means. However, the Polish Constitution explicitly anticipates possible limitations of the right to health care. What all these countries have in common is a cost containment perspective where the future will bring even tighter limits on what resources patients may consume. Despite differences in legal structure between these countries, where they seem to converge is on the consequences of putting limitations on the right to health care. The courts in Italy, the Netherlands and the UK have formulated conditions drawn from the acceptance that this right has to be judged within the context of limited resources. It may be concluded that finding a compromise between the right to health care and cost containment policies could also be an issue, Eastern European countries will have to face in the future.
Freedom of Speech -- Into Force for Physicians?
Authors: Petersen  , Segest  , Ortmann  , Lyngbye  
Published: November 2003

AbstractHealth policy is influenced by many sources. However, a prerequisite for a healthy health sector is an open dialogue, also in public. The opposite undermines the principle of patient rights, and squandering legitimation for the health sector and the physicians, too. The Scandinavian-Model is often mentioned in ensuring the citizen's rights, and open-minded debates. However, it may now and then be disrepected too much by the principals in power. We therefore found it of interest to report some concrete cases from the last decade, where physicians in Denmark exercised their right of freedom of speech, and as a consequence being dismissed, on the grounds of un-cooperativeness, but actually should be seen as a form of censure.
Is the Legislation of European States in Keeping with the Recent Convention on Human Rights and Biomedicine?
Authors: San Marco  , Terriou  , Pellissier  , Reviron  , Giocanti  , Hairion  , Auquier  , Manuel  
Published: November 2003

AbstractThe Convention on Human Rights and Biomedicine, the first legally binding international instrument in the field of bioethics, was adopted in November 1996. In the present paper, following a brief overview of some of the Convention's provisions likely to conflict with national enactments already in effect, we shall attempt, on the basis of the materials available in the International Digest of Health Legislation, to analyse the positions adopted by the different states involved and to identify foreseeable conflicts, focusing on the following four issues: human genome; protection of the embryo; scientific research; and protection of live organ donors.
The Future of Informed Consent in British Common Law
Authors: Earle  
Published: November 2003

AbstractWithin the common law world, the use of the term informed consent implies the American doctrine. Informed consent as a doctrine is not part of the law in the United Kingdom. However, it is possible to predict a way forward in disclosure cases yet to be heard in the courts of the United Kingdom. These predictions are based on current developments in the common law in the United Kingdom as well as those in Canada and Australia, on the European convention on Human Rights and Biomedicine and on trends within the medical profession itself in the light of the Bolam test.
Human Rights and Refugees: Enhancing Protection through International Human Rights Law
Authors:   Gorlick
Published: November 2003

AbstractThis essay analyses how UN mechanisms of human rights protection – namely the UN Commission and Sub-Commission on Human Rights, the Committee Against Torture, the Committee on the Rights of the Child and the Human Rights Committee – can be used as a practical and analytical tool to enhance the protection of refugees and suggests that they can make a significant contribution to refugee protection. Although UN mechanisms may not provide a framework of protection as expansive and reliable as domestic systems, recent developments in international human rights law have contributed to an increasingly important legal framework that can be invoked in support of both specific cases and more broad-based advocacy on behalf of refugees. This article draws on specific examples to argue that UNHCR and refugee advocates can use these laws and mechanisms to enhance protection principles and give effect to forms of enforcement.
Legal Pluralism in the Comoros and Djibouti
Authors:   Bogdan
Published: November 2003

AbstractThe article deals with the mixture of French, Moslem, and customary legal traditions constituting the legal systems of the Comoros and Djibouti. They are both extremely small jurisdictions in terms of legal resources and depend to a large extent on foreign legal models. They provide an example of how such jurisdictions may combine Western legal thinking with deeply rooted principles of Islamic law.
A Discussion of the Pinochet Case (House of Lords Decision of 24 March 1999) Noting the Juxtaposition of International Relations and International Law Perspectives
Authors:   Swain
Published: November 2003

AbstractThis article examines in detail the decision of the House of Lords in the Pinochet case (handed down 24 March 1999) and seeks to discuss the relevance of the decision in international law and international relations perspectives. The case is a focal point for discussing the current importance of two themes at the international level. Firstly, the relationship between the concepts of state sovereignty and human rights. Secondly, the nexus between international law and international relations theory.
Reception Conditions for Asylum Seekers in Europe: An Analysis of Provisions in Austria, Belgium, France, Germany and the United Kingdom
Authors:   Bank
Published: November 2003

AbstractAs a part of what may be characterised as challenges posed to welfare state systems by globalisation processes, growing numbers of asylum applications have made the access of asylum seekers to welfare state benefits an important issue. Thanks to the new EC competencies introduced by the Treaty of Amsterdam as Title IV of the EC Treaty, the situation accorded to asylum seekers after arrival and during the time while their claim is being processed will soon constitute an important issue on the European level. The discussion and the rules to emerge will be influenced on the one hand by standards derived from international law (in particular the 1951 Geneva Convention and the ECHR) as well as the existing national laws and practices.The article shows that limitations imposed on states' discretion in designing reception policies are few. On the other hand, the diversity of states' policies shows that common European standards are a long way down the road. However, the states examined have demonstrated a strong tendency towards more restrictive policies thereby following the obvious aims of deterrence and saving money. Additionally, it is shown that another subtext is underpinning restrictive measures: by limiting access to economic, social and cultural benefits possibilities for integration are kept at a low level. Having in mind the necessity to secure a life in human dignity, it will be argued that the time period of impeding full participation of asylum seekers in the host society must be kept very short.
The Jurisdiction of the European Court of Justice to Give Preliminary Rulings on the Interpretation of Mixed Agreements
Authors:   Heliskoski
Published: November 2003

AbstractThis article is about the scope of the jurisdiction of the European Court of Justice to interpret, under Article 234 of the EC Treaty, international agreements which include among their contracting parties the European Community, all or some of its Member States and one or more other subjects of international law and which fall partly within the competence of the Community and partly within the competence of the Member States (so-called ‘mixed agreements’). In particular, the article addresses the question of whether, and if so to what extent, the Court's jurisdiction covers those provisions of mixed agreements which have been concluded under Member State powers. New light has been shed upon the question of jurisdiction by the Court's judgment in Case C-53/96 Hermès v. FHT concerning the interpretation of Article 50 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) annexed to the 1994 Agreement establishing the World Trade Organization (WTO) – the first case where the jurisdiction issue is addressed by the Court outside the context of association agreements. The article analyses the judgment and its implications in the light of both the Court's earlier case law and the legal and policy considerations at stake when the scope of the Court's jurisdiction is determined.
Israel's Supreme Court and International Human Rights Law: The Judgement on ‘Moderate Physical Pressure’
Authors:   Laursen
Published: November 2003

AbstractOn September 6, 1999, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its latest judgement on the question of the use of ‘moderate physical pressure’. The lack of substantial references to international law in the Court's reasoning was notable. The present article examines the possible reasons for the reluctance to introduce international law and goes on to analyse the effects of this reluctance. The analysis finds that the reasons for leaving international human rights norms out are less than compelling and that keeping the necessity defence for interrogators using force against detainees leaves a substantial risk of abuse.The article goes on to place the judgement in the larger context of Israeli human rights practices. By applying the so-called ‘spiral model’, developed within international relations theory, it is possible to examine linkages between international norms and domestic change. The model allows for an evaluation of what progress has been achieved so far and for suggestions as to which measures are still needed. It is found that the judgement reasonably can be interpreted as a tactical concession and that further progress in efforts to eradicate the use of force against detainees is dependent upon a change in the attitude of the Israeli public. Future efforts should thus be aimed at influencing Israeli public opinion to ensure that torture is eliminated from Israeli interrogation practices.
Emergency, War and International Law – Another Perspective
Authors:   Ni Aolain,   Gross
Published: November 2003

AbstractThis article evaluates a spectrum of emergency responses by states. We are interested in exploring the variety of contexts in which states respond to internal and external crisis, and the manner in which international law contextualises and responds to the use of extreme measures by states. While international lawyers have become attuned to the prerogatives of states in derogating from their international human rights treaty obligations, we contend that this constitutes only one aspect of state emergency responses. We explore the extent to which states resort to extra-ordinary measures in multiple ways. In particular, we explore the relationship between war and emergency, from a theoretical point of view. Both classic inter-state conflicts are examined, as are the multiple situations of internal armed conflict, that frequently escape precise legal definition under international law. We take the view that international law has taken a limited and unrepresentative view of the scope and breadth of the emergency phenomena in state practice. From this general position some general observations follow. First, we identify the tendency of legal scholars to assert that clear dichotomies exist between normal and extreme conditions, when such clear-cut distinctions are not present. From this, we argue that `war' and `emergency', are not unique and entirely distinct phenomena. In short, we submit that emergency and its associated practices is a far more wide-spread and pervasive aspect of state experience and action than has generally been accepted by legal scholars and political thinkers. The consequence of this rethinking is a need to redefine the resort to the extraordinary in our perception of state behaviour and to modify our theoretical perspectives accordingly.
Unauthorised Humanitarian Interventions – Armed Violence in the Name of Humanity?
Authors:   Harhoff
Published: November 2003

AbstractThis article seeks to analyse the various responses given after NATO's intervention in Kosovo to the question of the lawfulness of unauthorised humanitarian interventions, i.e. armed interventions without authorisation of the UN Security Council. While some scholars maintained that such interventions are lawful, others held that they were clearly unlawful. The article includes a survey of previous incidents of armed interventions, but no clear answer to the question can be derived on the basis of these earlier cases. On this background, the article suggests that contemporary international law is unable to provide an answer to the question of whether or not unauthorised armed interventions for humanitarian purposes are lawful. Instead, attention should be drawn not only towards the formulation of certain criteria according to which the lawfulness of future interventions can be tested, but also to the identification of an institution or a procedure to handle the test.
The Life and Times of the Law of International Organizations
Authors:   Klabbers
Published: November 2003

AbstractThe author analyzes the development of the law of international organizations through the case-law of the World Court and doctrinal writings, and distinguishes three stages. In the first stage (roughly, the interbellum), the law was mainly concerned with trying to come to terms with the new phenomenon of international organizations. In the second stage (peaking in the 1950s and 1960s), the law was predominantly concerned with solving practical problems. In the present third stage, however, conscious attempts are being made to conceptualize and to place organizations in a larger normative perspective. The author concludes that this is a felicitous development.
A Flat Earth? International Organizations in the System of International Law
Authors:   Brölmann
Published: November 2003

AbstractThe author analyzes why it is that international law has problems accommodating international organizations, and argues that this (partly) finds it cause in the circumstance that organizations are multi-layered entities. Some of the more central doctrines of international law (in particular the law of treaties; to some extent also the law of responsibility) are, however, better suited to deal with unitary entities such as states. In order to overcome such systemic difficulties, the author carefully advocates a reconceptualization of both international organizations and the system of public international law.
The EU and Its Member States, Other States, and International Organizations – The Common European Security and Defence Policy after Nice
Authors:   Österdahl
Published: November 2003

AbstractThe author discusses the changes made in the Treaty of Nice concerning the EU's external face as well as the influential French Presidency report on the European Security and Defence Policy, with a view to analyzing the relations between the EU and its member states as well as those between the EU and various other organizations active in the same field. She concludes that the institutional infrastructure is reasonably well developed.
Judicial Reform under International Law: Notes from Bosnia and Herzegovina
Authors:   Bergling
Published: November 2003

AbstractAs a result of a recognition that many of the atrocities of the war in Bosnia and Herzegovina stemmed from poor respect for fundamental democratic and human rights principles, the Dayton Peace Accords (DPA) came to emphasize that the new BiH should be a democratic state operating under the rule of law and that the state and entity governments should ensure the highest level of internationally recognized human rights standards and fundamental freedoms. It was also clear to the international community that the judicial authorities of BiH would not be able to transform this language into reality when the nationalist political parties resisted any such development. Annex 10 of the DPA therefore gave the Office of the High Representative, the international body responsible for the implementation of the DPA and the highest authority `in theatre', a far-reaching mandate, sometimes referred to as `protectorate-style powers', to decide, interpret and implement policies as it sees appropriate and to substitute itself for local authorities when they fail to promote the goals and principles spelled out in the DPA. In order to promote judicial reform and safeguard vital rule of law interests, the High Representative may consequently impose decisions and laws and remove obstructionist officials. This article describes how these powers are exercised and how the broader effort of judicial reform, involving a wide range of national and international actors, is organized in Bosnia and Herzegovina.
Feminism, Imperialism and the Mission of International Law
Authors:   Orford
Published: November 2003

AbstractThis special issue of the Nordic Journal of International Law is testimony to the range of international interventions that have been enabled by the energies and insights of feminism. Each of the contributions to this issue is an attempt to think through what it means to read and write feminist legal theory in an age dominated by internationalist narratives, whether of globalization and harmonization, or of high-tech wars on terror and for humanity. This introductory article sketches some of the ethical and political questions that face those of us who attempt to develop a feminist practice of engaging with the projects of international law, whether in the fields of human rights, military intervention, post-conflict reconstruction or economic globalization. In particular, I explore the extent to which feminist internationalism is haunted by the shades of those nineteenth-century European feminists whose role in facilitating empire is undergoing much exploration. In order to think through the ethical issues involved in developing a feminist reading of international law, this article outlines some of the ways in which feminist legal theory is invited to participate in the project of constituting women and the international community. I consider some of the dangers involved in accepting this invitation, and propose alternative methodologies for undertaking the risky project of reading international law.
Women and Human Rights in the Rebuilding of East Timor
Authors:   Wood,   Charlesworth
Published: November 2003

AbstractThis article considers how the discourse of women's human rights has been employed in the lead up to independence in East Timor. It describes the way that the United Nations' temporary administration responded to the situation of women after the Indonesian occupation and assesses the adequacy of its attempts to 'mainstream' gender in the independence process.