La responsabilidad del Estado contiene unos elementos dentro de los cuales está el de la causalidad, que para el caso del sistema jurídico colombiano lo prevé el artículo 90 constitucional, el cual ...se fundamenta en criterios iusfilosóficos positivistas, en la medida que el legislador es el que establece los criterios que la sustentan. La causalidad de manera específica se ha enmarcado en dos grandes formas, como son la causalidad jurídica y la causalidad material, las cuales son interdependientes y se sustentan en diversas variables de positivismo jurídico, como son el normativismo y el positivismo social, respectivamente. En cualquier sentido, las formas de causalidad mencionadas no existen por si solas para tener incidencia en la responsabilidad del Estado, porque la materialidad debe tener relevancia jurídica haciendo viable una imputación, lo cual se logra con la interacción de las dos clases de causalidad.
Since the state responsibility refers to the accountability of the state to individuals, its nature relies more than anything on the nature of the relationship between individuals and the state. ...Given the Rousseau’s relying upon modern subjectivity, this relationship has entered into a new phase which is different from the former outlooks especially that of Hobbes. Adopting an analytical approach, this article deals with the question, "what does Rousseau's approach to the relationship between individuals and the state imply about the concept of state responsibility?" This essay concludes that due to Rousseau's perspective about the unity of state and individuals, basically there is no duality which holds one responsible against the other and the responsibility of states to individuals is equal to one’s responsibility toward itself.
The development of the promotion and protection of human rights, in general, has been gladdening. However, in instances where human rights are affected by business activity, efforts to uphold them ...meet certain obstacles. This is exacerbated when the business activity involves a complex and international dimension in it—i.e., in the case of multinational enterprises. This paper provides three arguments to support the establishment of international binding treaty on business and human rights. It examines the current Corporate Social Responsibility platform, state responsibility to protect human rights, and also the importance and benefits of legally binding treaty. This research found that the implementation of the current CSR platform fails to prevent business harm to human rights. Therefore, state responsibility is fundamental in this matter and should be enhanced by the duty to establish an international treaty. A legally binding treaty is important to protect human rights from irresponsible business activity and can be beneficial and relevant to the interest of parties involved in business and human rights.
Indonesia's natural resources which are very strategic and have an important role on the national economy include natural resources in the form of oil and natural gas which must be used as much as ...possible for the prosperity of the people of Indonesia. This is confirmed in Article 33 paragraph 3 of the 1945 Constitution of the Republic of Indonesia which states that the earth, water and natural resources contained therein are controlled by the state and used for the greatest prosperity of the people. Potential oil reserves in border areas should be given a special share of the results of oil and gas management so that development in the border region is quickly encouraged to match the development of urban areas. Current regulations in the field of oil and gas management (Law Number 22 Year 2001 concerning Oil and Gas) are very liberal and are very far from the mandate of the 1945 Constitution which requires the prosperity of the people. In the implementation of state control over oil and gas management in border areas, the policy aspects can be as follows: Regulation (Regeleensdaad), Management (Bestuurdaad), Management (Behersdaad), and Supervision (Toezicthoudensdaad), Decision / stipulation (Beschikking). This research is a normative legal research that specifically examines the laws and regulations governing natural resource management in Indonesia, with the aim of finding out how the state is responsible for oil and gas management in border areas. The results showed that the results of the management of oil and gas mining managed by business actors in general, and foreign investment companies in particular benefit the company more than the people's welfare. Foreign domination in the exploitation of national energy, especially oil, is due to unfavorable work contracts, weak energy security vision designed by the government, institutional integration in upstream and downstream management, regulations are still ad-hoc and planning is weak, weak control system and good governance (good governance) in the energy sector.
There is broad consensus within the international community that conditions in the al-Hol prison camp, which holds thousands of captured wives and children of ISIS fighters, constitute egregious ...international legal violations. Less clear, however, is which State (or States) may be held internationally responsible for those violations. Litigation at the European Court of Human Rights thus far has centered on the question of whether detainees' States of nationality bear a positive obligation to repatriate or else violate extraterritorial obligations under regional human rights instruments. Yet the primary violations implicated by the camp likely go further than those contained within those treaties-and the States facilitating the continued operation of the camp are not only European States of nationality. The United States, along with several other members of the Global Coalition, have continued to assist the Syrian Democratic Forces in its management of the camp by funding, training, and equipping its members. Yet a finding of international responsibility for those States will likely be hampered by the limitations within the current framework provided by the Articles on the Responsibility of States for Internationally Wrongful Conduct (ASR). This Note seeks to do three things: first, to articulate which rules of international law the camp and its conditions violate; second, to pinpoint the "legal lacuna" in the ASR which allows for complicit States to evade responsibility; and third, to identify the potential solutions for bridging this legal gap.
The frightening global situation due to the COVID-19 pandemic has caused various problems related to health conditions, including mental health crisis. The fulfillment of mental health as part of ...human rights is a logical consequence of the ratification of the International Convention on Economic, Social, and Cultural Rights by Indonesia. The State as the duty bearer is obliged to fulfill, protect and respect every existing human right, including the right to health. This research aims to examine the relation between the regulation of the human right to health and the right to mental health and the State’s responsibility through the implementation of the fulfillment of mental health rights. The method used is doctrinal legal research. The result of the analysis found that the mental health right is an integrated part of the right to health with the main responsibility for fulfilling it is the State’s obligation according to the current constitution. There are several forms of substantial efforts by the State to fulfill it. Those implementation forms require efforts to increase and equalize facilities by the State to fulfill mental health right maximally.
Abstract
States are increasingly delegating their regulatory functions to social media platforms to censor information, and the risk of a state retreat from the regulatory space has been extensively ...discussed. However, little is said about what this means when the state becomes a user of the same platform from which it retreats as a regulator—and more importantly relies on its user capacity to configure and repress public opinion. This article asks how we go about contextualizing the evolving nature of state violation of rights and freedoms on social media platforms and the state’s dereliction of duty? It argues that the changing dynamic represents a process by which power reproduces itself by linking state and corporate interests to the detriment of the people. Using perspectives from business and human rights and the Afro-centric conception of human rights, it presents an alternative reading of state duty for digital wrongdoing.
Following the adoption of the Universal Declaration on Human Rights (UDHR) after the World War II, the international community has begun to try to respect and to protect human rights. Among the basic ...principles in the protection of human rights are the principles of equality and non-discrimination that every human being is considered to be equal without differences. Unfortunately, presently, many human rights violations against minority groups are triggered by differences of ethnicity, religion, race, or language. In 2018, the CERD Committee reported that there were arbitrary arrests of ethnic minority Uighurs in the Xinjiang region ofChina. A number of reports say that the Chinese government had violated several basic rights of the Uighurs. Several international human rights law conventions have regulated remedies when a state commits a human rights violation. This paper is intended to examine the forms of human rights violations committed against the Uighur minority and the legal remedies that can be done to hold the Chinese state accountable for alleged human rights violations committed.
Resumen El artículo justifica un estándar de suficiencia probatoria para crímenes de lesa humanidad. Para lograr ese objetivo, la investigación se divide en tres partes. Primero, evidencia la ...ausencia de una explicación exhaustiva que justifique la aplicación de un estándar de prueba en la justicia transicional. Segundo, adopta un modelo procesal alternativo como método para fijar un estándar de suficiencia probatoria flexible, diferente de aquel usado en juicios penales. Tercero, diseña el argumento de la asimetría de las posiciones procesales para reducir la exigencia probatoria mediante la exposición de dos razones centrales: la desventaja injustificada que sufre la víctima de crímenes contra la humanidad y las limitaciones de la sanción jurídica impuesta por estos delitos. Por último, el artículo concluye que la aplicación de un estándar de prueba diferenciado solo es posible frente a casos excepcionales, como serían aquellos juicios asociados a graves violaciones de derechos humanos.
This research aims to show the effects of the Coronavirus (COVID-19) on contractual obligations in the tourism contract. The pandemic caused the cancellation of most tourism contracts in Algeria, ...specifically, and around the whole world, generally. It caused also losses to tourism and travel agencies, in addition to moral and physical harm to tourists stuck abroad. It has been concluded that Coronavirus is an exceptional circumstance, which is considered as force majeure, under which tourism contracts are cancelled and the tourist agencies are granted exemptions from their responsibility towards the tourist. Therefore, the state takes the responsibility being the issuer of the emergency situation. By enacting legislative provisions that would suspend people’s transportation inside and outside the country, the State must therefore assume its legal responsibility for its legislative provisions, so that, the issue of compensating the damaged parties related to the tourism contract is the state’s responsibility.
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