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7719 results in Intersentia

Page 282 of 386

Between Rights and Responsibilities
  • A Fundamental Debate
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016
  • The last decade has witnessed increased criticism of the classical human rights paradigm for its obsession with the 'culture of claims and rights'. According to its critics, this culture has led to an obsession with the rights of individuals at the expense of focusing on groups and communities worldwide, and moreover, neglecting responsibilities and duties. It is also argued that the Western emphasis on the rights of individuals should be overcome by paying more attention to the responsibilities of individuals and collectivities as represented in other cultures of the world, and several documents have been drafted to this effect. These discussions, and the ensuing documents, are far from only theoretical or abstract but are grounded in day-to-day realities, as the ongoing debates on globalisation, multiculturalism, terrorism, and the like clearly illustrate.This volume comprises ten original chapters that were presented for the first time at a colloquium held at the Faculty of Law of the University of Leuven (Belgium) back in 2006, and subsequently reworked and fine-tuned over the years. Part I sets the scene of the debate about fundamental rights and fundamental responsibilities, while in Part II the implications of an emphasis on responsibilities, duties and obligations are concretised in specific areas and through specific cases. This book cannot answer all the questions posed by the changing realities of rights and responsibilities in today's world, which is undergoing profound changes. However, it does aim to shed new light on important problems related to some of the major transformations occurring in European and Western societies and the ensuing changes in philosophical, political, social and legal thinking. It is therefore directed to academics, as well as policy-makers at various levels, the media and any person interested in a deeper understanding of new challenges for the modern world.

  • Human Rights in a Globalising Economy. Rights and Responsibilities of Trade Unions

  • from PART II - RIGHTS AND RESPONSIBILITIES IN SPECIFIC CONTEXTS
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 113-124

  • Summary

    INTRODUCTION

    In addressing the role of trade unions in the local, national and international economy, many commentators, both within the labour movement as well as outside, tend to focus quite narrowly on the role of unions in organising and representing workers in the workplace. This is not surprising given that the fundamental objective of the trade union movement is to ensure the social and economic well-being of workers, and a common experience affecting that wellbeing is what happens in the workplace. Thus union activity aimed at improving wages and working conditions obviously serves to achieve that fundamental objective.

    But workers’ social and economic well-being is not solely affected by what occurs within the workplace, and trade unions have a role in influencing government policies on economic and social issues generally, and in working to insure political and civil rights. Not only is this role consistent with the fundamental objectives of the trade union movement, it is a responsibility which unions assume as the beneficiary of the rights to association, assembly and free speech.

    UNIONS AS BENEFICIARIES OF HUMAN RIGHTS PROTECTION

    The Universal Declaration of Human Rights recognises as a basic human right the right to freedom of association, and in particular the right to form and join trade unions. Other international and regional instruments recognising the right to association also specifically mention the right to form trade unions. Unions have benefited from the protections accorded by these and other international instruments in securing their ability to freely operate to protect worker interests.

    The right to association, however, is not only a good in itself, i.e. as an individual freedom to form human relationships, but is also a means to achieving other goods; in the case of trade unions it also provides a means of ensuring the social and economic well-being of workers. It is this instrumental aspect of freedom of association which encompasses the obligation to use that freedom in ways that will advance human rights and dignity for the community as a whole.

    This instrumental responsibility has been directly addressed in the 1998 UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Rights and Fundamental Freedoms (UN Declaration).

  • Human Rights in a Globalising Economy. Is the Right to Social Protection Qualified by a Duty to Work?

  • from PART II - RIGHTS AND RESPONSIBILITIES IN SPECIFIC CONTEXTS
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 85-112

  • Summary

    INTRODUCTION

    Socio-economic human rights, including the right to social protection, have been facing multiple ideological challenges in the past two decades. A first challenge comes from the neo-liberal ideological pressures which the European social security systems have experienced, together with growing concerns over financial sustainability. This challenge has been compounded by the financial and economic crises since 2008. A second challenge originates from a cultural relativist debate, often but not exclusively in terms of Asian or African values, which has resulted in a competing discourse on human responsibilities and duties. The cultural relativist debate challenges human rights more in general, but mainly questions civil and political rights. Somehow in line with cultural relativism, there has been an attempt also at establishing a new global ethic which human responsibilities are central to.

    As far as the right to social protection is concerned, the first challenge, that is the neo-liberal one with its emphasis on the individualisation of responsibility for social risks, is far more serious than the second one. Neo-liberal policies in Europe, in a context of increasing financial difficulties of social security systems, have confronted the human rights monitoring bodies with restrictive policies and practices in the field of social protection, and necessitated them to cautiously balance economic and social realities with human rights standards. The question that inevitably lurks is whether they have not too much accommodated neoliberalism to the detriment of high human rights standards.

    In what follows, brief attention will be given first to the cultural relativist critique and to proposals for a new global ethic based on human responsibilities. The remaining of the chapter will focus on the neo-liberal challenge, as it has emerged in policies and practices. In particular, we will examine how the right to social protection relates to a duty to work. While some attention will be given to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the ILO Conventions, the main focus will be on the (Revised) European Social Charter ((R)ESC). It will be argued that while an obligation to work may well exist, it does not enjoy the same legal status as the human right to social protection and its composite rights.

  • Human Rights and Human Responsibilities. Setting the Ethical and the Conceptual Scene

  • from PART I - FUNDAMENTAL RIGHTS AND FUNDAMENTAL RESPONSIBILITIES: SETTING THE SCENE
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 13-34

  • Summary

    INTRODUCTION

    We live in ‘a time of responsibility’, as the French philosopher Jean Greisch once remarked. We are called upon, all the more insistently, to take a stand and to act on that choice in the often complex and confusing circumstances of insecurity, uncertainty, and vulnerability to which our late-modern societies have become subject. These societies find themselves in fact on the seemingly perilous knifeedge of local contexts, on the one hand, and a globalising perspective, on the other. This leaves people uncertain how to give form to their own personal autonomy, and in particular, how to develop their own future.

    As a moral basis to law, autonomy actually refers not so much to the choices we make on a daily basis, perfunctorily and without too much reflection, but rather to the specific capacity of an individual person to make deeply reflective choices. Gerald Dworkin, following Harry Frankfurt, calls this latter conception of autonomy ‘a second-order capacity of persons to reflect upon their first-order preferences [that first, more superficial notion of autonomy], desires, wishes, and so forth and the capacity to accept or attempt to change these in light of higher-order preferences and values.’ He continues: ‘By exercising such a capacity, persons define their nature, give meaning and coherence to their lives, and take responsibility for the kind of person they are.’

    It is precisely this notion of responsibility, anchored in a strong sense of autonomy and in a robust capacity for reflection, that can give conceptual texture to a number of legislative instruments proposed in the last decennia and designed to re-establish the equilibrium between individual rights and freedoms, and individual duties, obligations, and responsibilities. I deal with just three of these initiatives, since each of them illuminates a specific dimension of the relation between rights and responsibilities.

    SETTING THE ETHICAL SCENE

    THREE PROPOSALS FOR CHARTERS OF HUMAN RESPONSIBILITIES

    In the wake of the 50th anniversary of the Universal Declaration of Human Rights, a number of leading former statesmen and politicians gathered under the auspices of the ‘InterAction Council’ (created in 1983) and proposed a Universal Declaration of Human Responsibilities. In the ‘Introductory Comment’ to their proposal, the authors explain why the time has come to talk about human responsibilities.

  • Rights, Responsibilities and Duties for the Civil Society. Moral Challenges Put Forward by the Millennium Development Goals

  • from PART I - FUNDAMENTAL RIGHTS AND FUNDAMENTAL RESPONSIBILITIES: SETTING THE SCENE
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 35-50

  • Summary

    INTRODUCTION

    Human rights lawyers and human rights activists often hesitate or even hate to talk about human responsibilities and obligations (hereafter summarised as ‘duties’). This is the case for obvious reasons, which can best be understood in light of the very beginning of the history of human rights, relating to the protection of human beings against the abuse of power by States. Talking too much about duties of human beings (and their societal organisations) would be a nice ‘playing card’ in the hands of authoritarian governments, whether they are communist left, military right or religiously fundamentalist. In daily global reality one could and can find a lot of support for that fear. Think of the camps in the former Soviet Union and of today's developments in countries like North Korea and Iran. Also think of the grounds upon which in countries like China freedom of expression is dealt with: one is allowed to say everything, as long as it fits into the interests and views of the communist party.

    Despite this, there might be good grounds to talk about human duties, alongside rights. This chapter addresses these duties of human beings and their non-governmental organisations towards other human beings and the world society as a whole. The focus will be upon a basically moral appeal connected to forms of accountability, and not upon new legally binding obligations. Further to that, the focus will be upon one selected issue: the need to realise the Millennium Development Goals (MDGs) and the human rights related thereto. Is the MDG reality ‘ordering’ us to rethink the notion of duties for not only States but for individuals and their organisations as well?

    A FEW HISTORICAL REMARKS

    Before entering into the question whether or not the MDGs raise the need to sharpen the notion of human duties in the context of human rights, it might be good to observe that already during the 1946–1948 negotiations on the Universal Declaration of Human Rights (UDHR) the issue of duties was discussed time and again. Already during the very first meeting of the drafting committee, it was proposed to formulate as a core principle of the Declaration ‘that man does not have rights only’, but also ‘owes duties to the society of which he forms part’.

  • Human Duties and Responsibilities for the Reinforcement of Human Rights. The Declaration of Human Duties and Responsibilities (1998)

  • from PART I - FUNDAMENTAL RIGHTS AND FUNDAMENTAL RESPONSIBILITIES: SETTING THE SCENE
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 67-82

  • Summary

    ‘The Declaration under discussion here not only represents an inaugural announcement, but also a formal undertaking’

    Norberto Bobbio

    The aim of this chapter is to offer a contribution to the discussion on the moral and legal interrelation of rights, duties and responsibilities, inspired by the unique approach of the Valencia Declaration of Human Duties and Responsibilities (DHDR) (1998). This declaration attempted, for the first time, to comprehensively reveal the role and importance of duties and responsibilities contained in our human rights systems and to identify their bearers. This chapter is intended as an overview of the various provisions in the declaration. I will also make reference to other initiatives appealing to global responsibility, such as, for instance, the UN Millennium Declaration (2000) and the UN's The Future We Want (2012).

    In this chapter, the DHDR will be considered in light of the Universal Declaration of Human Rights (UDHR) (1948) and also as an inspired input to succeeding statements. The UDHR has, since its adoption, played an essential role in the promotion and protection of human rights worldwide. Today it can be held to constitute the moral core of international, regional and national law, hereby exceeding its original purpose.

    The DHDR was written on the occasion of the 50th anniversary of the UDHR, under the auspices of UNESCO and the UN High Commissioner of Human Rights. The goal of this new document was to strengthen the implementation of human rights. The approach of the DHDR is, however, decidedly different from that of traditional human rights documents. Rather than focusing on individual rights, it formulates a number of duties and responsibilities which are deemed essential in light of our global interdependence. Its preamble states categorically:

    ‘The effective enjoyment and implementation of human rights and fundamental freedoms is inextricably linked to the assumption of the duties and responsibilities implicit in those rights’.

    The DHDR's drafting process was inspired by the need for a transition from a ‘formal equality’ to a ‘substantial equality’, with a shared concern for the situation of millions of ignored and marginalised people in our globalised world: ‘the recognition of human rights is insufficient … [I]f such rights are to be realized it is necessary that they are enforceable … There must be a duty on all relevant authorities and individuals to enforce those rights.’

  • From Lawless to a Human Rights Approach in the Fight Against Terrorism. The Council of Europe Standards

  • from PART II - RIGHTS AND RESPONSIBILITIES IN SPECIFIC CONTEXTS
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 141-156

  • Summary

    ‘Against the call for so-called “tough measures”, few political leaders can find the strength and wisdom or indeed the support to fight terrorism while preserving the established human rights protective system. Repressive sirens will always call for “new” harsh measures to meet these “new” challenges from terrorism and few leaders have the toughness to “hold the fort” in such circumstances.’

    ECtHR Judge John Hedigan

    INTRODUCTION

    The fight against terrorism is high on the domestic and international political agenda. Over the past years, various governments in Europe (and elsewhere) have approved numerous laws to amend domestic law in order to fight the so-called ‘War on Terror’ more effectively. This contribution looks at this security legislation from a human rights perspective, focussing on the applicable standards developed within the framework of the Council of Europe in which the case law of the European Court of Human Rights (ECHR) plays a prominent role. In doing so, this chapter aims to identify certain trends. Its aim is not to present an exhaustive overview of all relevant case law of the ECHR.

    When examining the standards developed within the framework of the Council of Europe, the dual responsibility for national authorities emerges. On the one hand, one may expect a state to uphold fundamental rights of terrorist suspects. On the other hand, states have the responsibility (also from a human rights perspective) to offer protection to their citizens. By way of introduction the ‘Gibraltar judgment’ of the ECHR is discussed (section 2), after which some more general comments are made concerning terrorism being a ‘new’ threat (section 3) and the clash between the responsibility to uphold civil liberties and the duty to protect (section 4). Attention then shifts to the need for proper procedural guarantees (section 5). Two specific issues in this regard are highlighted: the problematic use of information from intelligence agencies in judicial proceedings (section 6) and the tendency of domestic legislators to create a separate legal space for terrorism (section 7).

    THE GIBRALTAR CASE

    ‘The shooting took place on a fine Sunday afternoon’ could be the opening sentence of an Ernest Hemingway novel, but is in fact to be found in the McCann judgment of the European Court of Human Rights.

  • Chapter 4 - The Enforcement of American Punitive Damages in the European Union

  • Cedric Vanleenhove
  • Book:
    Punitive Damages in Private International Law
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    19 July 2016, pp 87-146

  • Summary

    The enforcement of judgments is the third area of private international law in which the study of punitive damages is relevant. When an American court orders punitive damages against the defendant, he or she must pay the amount due to the plaintiff. If a debtor is unwilling to pay, the judgment needs to be enforced against his assets. When the debtor has no or insufficient assets in the jurisdiction where the judgment was rendered, enforcement needs to take place in a country where the judgment-debtor has assets. This chapter looks at the enforcement of United States punitive damages judgments in the European Union.

    In this regard the book addresses five European Union countries: Italy, Germany, England, France and Spain. The reason for choosing these five Member States is twofold. First, these countries play an important role in the EU as over 60% of the European Union's population lives in those five nations. Moreover, these five countries represent the five largest economies of the European Union. Second, in Italy, Germany, France and Spain the Supreme Court has decided on the enforceability of (American) punitive damages. England is also included because it is one of the only Common Law countries in the European Union. As England is familiar with punitive damages, it is important to get acquainted with their position on foreign punitive damages.

    The aim of the chapter is to describe these countries’ current attitude towards foreign punitive damages. The order in which we discuss these countries has been carefully considered. It ranks the countries’ stance from conservative (Italy and Germany), over mixed (England) to progressive (France and Spain). In all these countries the enforceability of American punitive damages awards depends (at least in part) on the interpretation of the public policy exception.

    It is once again underlined that international cases trigger the more narrow concept of international public policy. This is the appropriate yardstick when dealing with cases which are not purely domestic. In cases with a cross-border element a legal system is supposed to be more tolerant and cannot impose its rules of domestic public policy on the matter. Especially in the field of enforcement of judgments, legislators, courts and scholars sometimes fail to make the appropriate distinction between public policy and the narrower concept of international public policy.

  • Chapter 1 - The Concept of Punitive Damages in American Law

  • Cedric Vanleenhove
  • Book:
    Punitive Damages in Private International Law
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    19 July 2016, pp 9-44

  • Summary

    This first chapter introduces the concept of punitive damages from an American perspective. First, an attempt is made at defining the remedy of punitive damages as it exists in the United States. The chapter then provides insight into the historical origins of this type of damages and into their development within American law. It sets out the requirements commonly put forward for the granting of punitive damages. Subsequently, the objectives behind the awarding of punitive damages are explored. It is further demonstrated that punitive awards do not occur in the amount and the frequency public opinion seems to believe they do. Lastly, the clear trend to limit both the number as well as the amount of punitive damages awards is described. Particular attention is dedicated to the U.S. Supreme Court's line of cases putting constraints on punitive damages by relying on the Due Process Clause of the Fourteenth Amendment to the American Constitution. The chapter lays the foundation and provides the background needed to address the position and treatment of U.S. punitive damages within private international law.

    DEFINITION

    The victim of a tort committed by another person, a legal entity or the government is entitled to be placed in the situation he or she would have been in had the tort not taken place. This is a fundamental principle of tort law in the United States as well as in the European Union. The tortfeasor must pay damages to compensate for the harm suffered by the plaintiff as a result of the tort. These compensatory damages (also referred to as actual damages) are further categorised into patrimonial (or pecuniary) and non-patrimonial (nonpecuniary or extra-patrimonial) damages. The former serve to reimburse the plaintiff 's quantifiable monetary losses, such as property damage and medical expenses. The latter compensate for non-monetary forms of damage, with physical or emotional pain and suffering and loss of reputation as most common examples.

    Punitive damages on the other hand provide plaintiffs in civil procedures with additional monetary relief beyond the value of the harm incurred. The remedy transcends the corrective objective of re-establishing an arithmetical equilibrium of gains and losses between the injurer and the injured. Punitive damages are awarded in excess of any compensatory or nominal damages.

  • Chapter 3 - Punitive Damages and Applicable Law

  • Cedric Vanleenhove
  • Book:
    Punitive Damages in Private International Law
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    19 July 2016, pp 73-86

  • Summary

    INTRODUCTION

    The second area in which U.S. punitive damages come into conflict with the European legal systems is the field of applicable law. When a dispute containing cross-border elements is brought before a court of an EU Member State, the court will first establish whether it has jurisdiction to adjudicate the matter. If the answer is positive, the court then needs to determine what jurisdiction's law will apply to the case. The judge will look at the forum's private international law rules to select which country's laws will apply to the lawsuit. This is, mostly in the United States, referred to as the choice-of-law analysis.

    When the private international law rules point to the application of American law (i.e. federal law or the laws of one of the states), it is possible that the designated law provides for punitive damages. At that point the penetration of foreign punitive damages into Civil Law is imminent. The question to be answered is whether the court will apply that foreign rule or will dismiss it for contrariety to public policy. This issue will be addressed in this chapter.

    THE CONCEPT OF PUBLIC POLICY

    Both public policy and its cognate notion of international public policy were briefly mentioned in chapter 2. It was explained how the escape provision in article 13.1 of the Hague Service Convention is to be construed very restrictively and is, therefore, closely related to the narrow notion of international public policy. The escape clause allowing for refusal of service can certainly not be equated to the broader domestic public policy.

    As the public policy mechanism plays a prime role in the private international law arenas of applicable law and enforcement of judgments, it deserves further elaboration. The notion of public policy or ordre public refers to the common core of principles that are vital for the effective operation and social acceptance of a legal system. It reflects the fundamental socio-economic and moral values of a society. It has both a procedural and a substantive dimension. For punitive damages the latter is usually the most relevant of the two.

    Private international law cases, however, deal with a more restricted form of public policy, namely international public policy. The latter is, despite the name, a purely national concept.

  • Steering Clear of the Twin Shoals of a Rights-Based Morality and a Duty‑‌Based Legality

  • from PART I - FUNDAMENTAL RIGHTS AND FUNDAMENTAL RESPONSIBILITIES: SETTING THE SCENE
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 51-66

  • Summary

    In considering the extent to which human rights must be matched by human responsibilities, we might begin by asking, responsibilities of whom? International law imposes manifold duties on States to respect, ensure and fulfil human rights. It places duties on non-state organisations as well. For example, international labour law calls on business corporations not to employ forced labour, while international humanitarian law binds armed guerrilla groups not to attack civilians.

    This essay focuses on a particular class of duty bearers: individual human beings as they relate to one another and to society at the community, national and international levels. In the terms suggested by René Foqué in this volume, the first two parts of this essay argue that morally-based ‘duties’ and ethically-based ‘responsibilities’ are and should be more demanding than mere reciprocal respect for rights. The essay then goes on to contend that these higher moral and ethical standards cannot safely or feasibly be incorporated in what Foqué calls legallybased ‘obligations’.

    THE POVERTY OF A RIGHTS-BASED MORALITY

    Before considering individual obligations in a legal sense, I prefer to begin from an ethical or religious perspective. An erudite philosopher once suggested (or quipped) that human rights were the ‘new secular religion’ of the 20th century. That might be true in much of western Europe, especially if one were to read the Universal Declaration of Human Rights in its original, communitarian understanding, balancing rights with duties in an integral vision of how best to organise society in order to enrich human development and happiness. However, if human rights are understood through the interpretative lens more prevalent in practice over the last sixty years – as entitlements of individuals – then it diminishes the divine to elevate human rights to the theological plane.

    A society based on rights-claims alone is not in and of itself a moral society. As commonly articulated in the form of individual entitlements, human rights can be exercised in ways which are inherently selfish. Human rights speak of my rights, my entitlements, my legal space, my dignity, my body, my privacy, and so on. Of course, in a world where the individual is often assaulted by State brutality or repression, these entitlements indeed have their urgency. They must be recognised, cherished and safeguarded. By themselves, however, they do not suffice to construct a moral society.

  • Children's Rights at a Dignitarian Horizon of Responsible Parenthood

  • from PART II - RIGHTS AND RESPONSIBILITIES IN SPECIFIC CONTEXTS
  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 157-186

  • Summary

    ‘We have national debates about industrial relations, education, water, nuclear power. But we have no national debates about our most valuable asset, our children and their protection … We still have no national standards for child protection, no federal children's minister, no national policies or legislation, no national definitions, no federal system of children's commissioners, no independent scrutiny of child protection, and no reliable national data.’

    Chris Goddard and Joe Tucci

    INTRODUCTION

    All over the world, children, especially infants and pre-school children, are treated as the property of their parents rather than as legal subjects, entitled to the empowerment of their parents, to healthy development and to preparation for responsible life, including responsible parenthood. A strong libertarian tradition of formal parental autonomy (that is, autonomy as a legal fiat or fiction, as opposed to real or psychological autonomy) does not seem to leave much room for a child rights based evolution towards a more dignitarian construct of reproductive rights and parental responsibilities. In this chapter, this theme is preliminarily explored and attempts are made for its further development. In section 2, a helicopter view of the theme is presented. In section 3, the concept of responsible parenthood is explored on the basis of a pedagogical model of the principle of the best interests of the child, as well as of an overview of parental responsibilities and related state obligations under the Convention on the Rights of the Child (CRC, 1989).

    A HELICOPTER VIEW

    LIBERTARIAN AND DIGNITARIAN TRADITIONS

    In human rights law, a libertarian and a dignitarian stand or tradition may be discerned. Whereas the former emphasises individual freedoms, especially against state intervention, and formal individual autonomy (negative liberty, individualism), the latter tries to clarify the aspect of duties and responsibilities in relation to rights, and to integrate freedom, equal opportunities and solidarity (justice, or even love) into its concept of human dignity (positive liberty, personal development and global citizenship). Not so much ‘respect’ as a claim against others but the combination of self-respect and respect for others, as a core value or virtue, underlies this concept.

  • Introduction: Towards an Integrated Vision of Rights and Responsibilities

  • Edited by Stephan Parmentier, Hans Werdmolder, Michael Merrigan
  • Book:
    Between Rights and Responsibilities
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    19 July 2016, pp 1-10

  • Summary

    ‘And so, my fellow Americans: ask not what your country can do for you, ask what you can do for your country. My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man.’

    During his inaugural speech on 20 January 1961, American President John F. Kennedy could not have foreseen that his words would become so famous in the course of the next fifty years. These two sentences have been repeated over and over again, by different people on different occasions, and have also been adapted accordingly. The presidential proclamation that citizens should not limit themselves to claiming benefits and rights from the society they live in, but should also contribute to the development and the well-being of their societies is a very interesting, even provocative one. The core argument, in a nutshell, boils down to the general idea that citizens also have responsibilities, duties and obligations, next to possessing individual rights. In the past half-century this idea has gradually risen to the centre stage of public debate in many western societies, something that Kennedy in the early 1960s could hardly have envisaged.

    Some examples of recent debates in several European countries and beyond may illustrate this trend:

  • – For how long can persons who have lost their job receive unemployment benefits from local or central state agencies, and what kind of responsibility lies with the unemployed themselves? Can they be obliged to search for another job and, if so, under which conditions? Can persons with insufficient professional qualifications who receive benefits be obliged to receive training so as to improve their position on the labour market?

  • – In what way can public authorities impose obligations on members of non- European linguistic, cultural and religious minorities to comply with the general values and norms of the host country? More specifically, do all citizens have the right to dress the way they wish, or are certain restrictions allowed and on what grounds? Can newcomers, who are dependent on government benefits, be forced to learn the language of the host country and how?

  • – To what extent can or should the provision (or reimbursement) by the social security system of expensive health care treatments be made dependent on a patient's previous conduct with regard to his or her own health?

  • Chapter 2 - Punitive Damages and Service of Process. Serving U.S. Punitive Damages Claims on Defendants in the EU

  • Cedric Vanleenhove
  • Book:
    Punitive Damages in Private International Law
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    19 July 2016, pp 45-72

  • Summary

    The field of service of process is the first area of private international law in which the Common Law concept of punitive damages comes into contact with continental Europe. The commencement of a law suit in the U.S. requires the service of the claim on the defendant. When the defendant is not domiciled or not present in the U.S., service will have to take place abroad.

    The United States and all European Union Member States (except – at least for now – Austria and Malta) are Members of the Hague Convention on service abroad of 15 November 1965 (the Hague Service Convention). This instrument provides a mechanism for allowing the formal transmission of judicial or extrajudicial documents in civil and commercial matters from one Contracting State to another, for service in the latter State. Each Contracting State designates a Central Authority which arranges for the document to be served or serves it itself. The Convention facilitates service because it replaces time-consuming means of service (such as service through diplomatic channels). By expediting and simplifying cross-border transmission of documents, the Convention improves legal certainty of service.

    This chapter looks at issues that have arisen when serving U.S. punitive damages claims in the EU. In Germany there have been instances where service of such a claim has been denied. This part of the book examines the grounds in the Hague Service Convention on which these refusals of service have been based. First, it analyses the cases in which punitive damages have been classified as falling under criminal/public law. As article 1 of the Hague Service Convention provides that the Convention only applies to civil and commercial matters, this reasoning allows a refusal to serve punitive damages claims under the Convention. Second, the chapter discusses the cases regarding the exception clause of the Convention. Article 13.1 allows states to refuse service if it would violate the requested state's sovereignty or security. There is German case law denying the service of punitive damages on the basis of this provision.

    We argue that service of U.S. punitive damages should not be refused. Claims for punitive damages do fall under the scope of the Hague Service Convention as defined in article 1. The requested state also cannot rely on the escape mechanism of article 13.1 to deny service because punitive damages claims do not violate the requested state's sovereignty or security.

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