A Comparative Analysis of the Right To Appeal

The thermoneutral zone (TNZ) curve lies between the ambient temperatures (Ta) where an endothermic animal uses the least amount of energy to maintain a balance between the heat production from the animal’s own metabolism and the heat lost to the environment. If the animal is exposed to Ta’s over the upper critical temperature (UCT), which is the highest temperature that is still in the TNZ, the animals have to use energy to cool down. If they are exposed to temperatures lower than the lower critical temperature (LCT), which is the lowest temperature that is still in the TNZ, the animal have to use energy to warm up. In the present study oxygen consumption was measured at different Ta’s to determine the TNZ in two and three week old broiler chickens (Gallus gallus domesticus). Two different protocols were used and compared, a pseudorandom protocol in which chickens were exposed to seven temperatures in two hour periods for each run and a more typical progressive protocol in which Ta decreased gradually, one or two degrees per hour. The TNZ in two weeks old chickens was between 30.7 ˚C- 36.4 ˚C and between 28.8 ˚C- 32.7 ˚C in the three weeks old chickens. In chickens the TNZ shifts remarkably during the first few weeks of life towards lower temperatures as the animals acquire thermoregulatory competence. The method with a pseudorandom protocol takes more factors, like activity, into consideration than a typical progressive protocol

The Right to Relate: A Lecture on the Importance of “Orientation” in Comparative Sexual Orientation Law

The right to establish and develop relationships with other human beings was first articulated—as an aspect of the right to respect for private life— by the European Commission of Human Rights in 1976. Since then such a right has been recognized in similar words by national and international courts, including the U.S. Supreme Court (Roberts v. United States Jaycees), the European Court of Human Rights (Niemietz v. Germany), the Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality v. Minister of Justice), and the Inter-American Court of Human Rights (Fernández Ortega v. Mexico). This lecture traces the origins of this right, linking it to the meaning of the word orientation and to the basic psychological need for love, affection, and belongingness. It proposes to speak of the right to relate and argues that this right can be seen as the common theme in all issues of sexual orientation law (ranging from decriminalization and anti-discrimination to the recognition of refugees and of same-sex parenting). This right can be used as the common denominator in the comparative study of all those laws in the world that are anti-homosexual or that are same-sex-friendly. The right to establish (same-sex) relationships implies both a right to come out and a right to come together. The right to develop (same-sex) relationships is being made operational through legal respect, legal protection, legal recognition, legal formalization, and legal recognition of foreign formalization

Legislative History: Governor\u27s nomination: Paul K. Vestal, Jr., for appointment as member of the Maine Human Rights Comm\u27n (SP947)

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To Transfer or Not to Transfer: Identifying and Protecting Human Rights Interests in Non-Refoulment

Human rights law imposes upon States an absolute duty not to transfer an individual to another State where there are substantial grounds for believing he or she will be tortured or subjected to cruel, inhuman, or degrading treatment. This protection, called non-refoulement, emanates from a theory of human rights that recognizes rights fulfillment requires States to protect those within their jurisdiction from rights violations perpetrated by third parties, including other States. Generally human rights law recognizes that resource constraints and/or competing rights restrict protection duties. But such limitations have not been recognized in the non-refoulement context. In recent years the obligation to provide non-refoulement protection has run into conflict with the State\u27s obligation to protect its public from aliens suspected of involvement in terrorism. Expulsion is the traditional tool available to States to mitigate the threat posed by dangerous aliens. With this tool removed, States often lack an alternative route to mitigate this threat, with criminal prosecution and indefinite detention pending deportation not available for various reasons. The result has been numerous cases where States have been forced either to release dangerous aliens back onto the street, consistent with international law, or to find alternative means to deal with the threat in the shadow of human rights law. This Article argues that there is a clash of human rights duties that arises in these transfer situations: the State\u27s duty to protect aliens from post-transfer mistreatment conflicts with its duty to protect members of the public from rights violations committed by dangerous private persons within society. Human rights law has in recent years recognized a duty on the part of States to take reasonable operational measures to protect the public from private person harms where the State knows or should know of the risk. In the case of dangerous aliens, these operational measures presumably would include expulsion. By depriving the State of the ability to expel dangerous aliens, non-refoulement protection places the human rights of dangerous aliens and the public into direct conflict. Recognition of this rights competition is important for two reasons. First, for too long human rights scholars and bodies have dismissed the security consequences of non-refoulement as outside the concern of human rights. Acceptance that these security consequences themselves affect human rights requires consideration of how the law should address the conflict. Second, once a rights competition is accepted, human rights law prescribes a methodology for mediating between conflicting rights: balancing. A balancing approach would allow States a margin of appreciation to determine in the first instance how to choose between competing duties. The role of human rights apparatus, including national courts, international institutions, and non-governmental organizations, is to monitor this balance and to push States where the balance chosen appears over or under rights protective. A balancing approach has at least three major advantages. First, it brings within the law both relevant sets of human rights, ensuring that the rights competition in which States are engaged is recognized by the law. This recognition allows for better monitoring by the human rights apparatus, and reduces the incentives of States to act outside of the law in protecting the public. Second, balancing reduces the security consequences for States of granting additional categories of post-transfer mistreatment non-refoulement protection-a major goal of the human rights movement-thereby increasing the likelihood States will accept such future obligations. Third, by balancing the need to protect rights between both the transferring and receiving States, a balancing approach may actually lead to a more comprehensive anti-torture strategy, and therefore reduced occurrence of the practice

To Transfer or Not to Transfer: Identifying and Protecting Human Rights Interests in Non-Refoulment

Human rights law imposes upon States an absolute duty not to transfer an individual to another State where there are substantial grounds for believing he or she will be tortured or subjected to cruel, inhuman, or degrading treatment. This protection, called non-refoulement, emanates from a theory of human rights that recognizes rights fulfillment requires States to protect those within their jurisdiction from rights violations perpetrated by third parties, including other States. Generally human rights law recognizes that resource constraints and/or competing rights restrict protection duties. But such limitations have not been recognized in the non-refoulement context. In recent years the obligation to provide non-refoulement protection has run into conflict with the State\u27s obligation to protect its public from aliens suspected of involvement in terrorism. Expulsion is the traditional tool available to States to mitigate the threat posed by dangerous aliens. With this tool removed, States often lack an alternative route to mitigate this threat, with criminal prosecution and indefinite detention pending deportation not available for various reasons. The result has been numerous cases where States have been forced either to release dangerous aliens back onto the street, consistent with international law, or to find alternative means to deal with the threat in the shadow of human rights law. This Article argues that there is a clash of human rights duties that arises in these transfer situations: the State\u27s duty to protect aliens from post-transfer mistreatment conflicts with its duty to protect members of the public from rights violations committed by dangerous private persons within society. Human rights law has in recent years recognized a duty on the part of States to take reasonable operational measures to protect the public from private person harms where the State knows or should know of the risk. In the case of dangerous aliens, these operational measures presumably would include expulsion. By depriving the State of the ability to expel dangerous aliens, non-refoulement protection places the human rights of dangerous aliens and the public into direct conflict. Recognition of this rights competition is important for two reasons. First, for too long human rights scholars and bodies have dismissed the security consequences of non-refoulement as outside the concern of human rights. Acceptance that these security consequences themselves affect human rights requires consideration of how the law should address the conflict. Second, once a rights competition is accepted, human rights law prescribes a methodology for mediating between conflicting rights: balancing. A balancing approach would allow States a margin of appreciation to determine in the first instance how to choose between competing duties. The role of human rights apparatus, including national courts, international institutions, and non-governmental organizations, is to monitor this balance and to push States where the balance chosen appears over or under rights protective. A balancing approach has at least three major advantages. First, it brings within the law both relevant sets of human rights, ensuring that the rights competition in which States are engaged is recognized by the law. This recognition allows for better monitoring by the human rights apparatus, and reduces the incentives of States to act outside of the law in protecting the public. Second, balancing reduces the security consequences for States of granting additional categories of post-transfer mistreatment non-refoulement protection-a major goal of the human rights movement-thereby increasing the likelihood States will accept such future obligations. Third, by balancing the need to protect rights between both the transferring and receiving States, a balancing approach may actually lead to a more comprehensive anti-torture strategy, and therefore reduced occurrence of the practice

The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR

This paper examines Article 18 of the International Covenant on Civil and Political Rights and Article 9 of the European Convention on Human Rights. Both documents affirm freedom of religion as a fundamental human right, yet both recognize the need for restrictions on freedom of religion when “necessary.” The paper discusses the text of Articles 18 and 9, as well as European Court of Human Rights and Human Rights Committee cases interpreting and applying the Articles. The paper then analyzes several current laws restricting religious freedom on necessity grounds as to whether the restrictions are legitimate or illegitimate under the instruments. I conclude that the laws from several States likely do not pass muster, and pose a great risk to religious freedom. My second primary contention is that the “principle of secularism” (as defined primarily in European Court of Human Rights jurisprudence), without more, is an illegitimate justification for restrictions on religious freedom under the ICCPR and the ECHR. More specifically, the principle of secularism functioning as a principle by which religious expression may be excluded from full participation in democratic government is inimical to the ICCPR’s and ECHR’s vision of religious pluralism as “indissociable” from a democratic society. Further, the European Court’s application of the principle improperly equates a “secular” government with a democratic government, and as such is in tension with prior cases in which the Court has affirmed religious pluralism as axiomatic for a democratic society. The paper concludes with a discussion of the case of a pastor in Sweden who was convicted for preaching a sermon condemning homosexuality, as a test case for the application of the principles discussed throughout