The Age of Human Rights Journal https://revistaselectronicas.ujaen.es/index.php/TAHRJ <p><strong>ISSNe:</strong> 2340-9592&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;<strong>DOI:</strong> 10.17561/tahrj<br><strong>URL:&nbsp;</strong><a href="/index.php/TAHRJ">http://revistaselectronicas.ujaen.es/index.php/TAHRJ</a> &nbsp;&nbsp;</p> <p align="justify"><em>The Human Rights Age Journal</em> is a scientific journal of international relevance, published in English, peer-reviewed and open-access, containing papers concerning Human Rights from different approaches. This Journal is edited in the framework of the Research Network “The Age of Rights” (HURI-AGE), composed by about one hundred researchers belonging to some of the most important human rights research groups in Spain &nbsp;</p> Revistas electrónicas Universidad de Jaén en-US The Age of Human Rights Journal 2340-9592 Basic Income and the Rights of Persons with Disabilities https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4805 <p>The Convention on the Rights of Persons with Disabilities presents a social approach to disabilities. In accordance with this conception, the origin of the discrimination suffered by persons with disabilities is mainly social because we have designed our society without universal access for everybody. There is a normality criterion, based on physical capabilities, intelligence, race and gender that excludes many people from that canon. The different contemporary liberal theories of justice have discussed disabilities thinking about how the State could compensate brute luck. In this context, does universal basic income play some role? Van Parijs in <em>Real Freedom for All</em> defends a unanimous criterion to compensate for brute luck. That compensation would be made before distributing an equal basic income among everybody. In this paper, UBI will be studied in the context of the debate about rights of persons with disabilities. Firstly, the argument given by Van Parijs will be discussed because the unanimous requirement does not fit with a social understanding of disabilities. Secondly, if we consider a right to UBI, it is necessary to study which role this right can play in the life of people with disabilities and if we can say that this right has a universal design. In this point, it will be studied whether UBI can establish some type of indirect discrimination against people with disabilities and if so, which type of reasonable accommodation would be necessary to eliminate that discrimination.</p> JOSÉ LUIS REY PÉREZ Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 1 12 10.17561/tahrj.n12.1 Medical Malpractice as a Tort in the U.S., as a Crime in Italy: Factors, Causes, Paths and Outcomes https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4806 <p>The aim of the paper is, firstly, to try to understand the reasons for the different approaches to medical malpractice in two legal systems taken as models: the U.S., where professional negligence is almost exclusively subject of tort law; Italy, where criminal law instruments are instead widely used. The different extent of criminal responsibility for negligence and omission seems connectable to different political and cultural models: individualistic liberalism, on the one hand, solidarist statism and communitarianism, on the other hand; in juridical terms, to the ideal contrast between the reactive State and the active State; to the different approach to the relationship between subject and body, dominical-individual <em>versus</em> collectivist-social; with a tendential "privatization" of the health-good, in the US model, and a "socialization" of the good-health itself, in the Italian model. Secondly, the paper tries, in a comparative perspective, to evaluate these different approaches, in terms of access to justice, paths and outcomes of the two models. The article attempts to highlight the strengths and the weaknesses of the contingent-fee system in the U.S. tort arena, and of the criminal justice system as "free legal aid" in Italy: a balanced solution should also allow victims hindered by the costs and the length of civil actions the possibility of using these latter form of protection, avoiding that criminal justice is exploited for compensatory purposes. Indeed, tort law more easily can meet compensatory claims, due to the lower probative standard required, the preponderance of evidence, rather than the beyond any reasonable doubt standard, required in criminal law. Also in terms of outcomes, the main problems arising in the two systems need to be tackled: the problem of few persons compensated, allowing a greater number of injured parties to access to justice and obtain fair compensation; the problem of symbolic criminal convictions (observed in the Italian experience), avoiding the automatic use of suspended penalties and monetary penalties as substitute of penalties weighing on professional practice and freedom, since these automatic mechanisms limit the preventive effectiveness of the criminal sanction and run the risk of creating discrimination on a census basis.</p> ANDREA DI LANDRO Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 13 34 10.17561/tahrj.n12.2 Towards Reconstructing the Meaning of Inhuman Treatment or Punishment: a Human Capability Approach https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4807 <p>The prohibition on “inhuman treatment” constitutes one of the central tenets of modern international human rights law. However, in the absence of any legislative definition of the term "inhuman", its interpretation becomes challenging.&nbsp; The aim of this article is to critically analyze the interpretation of the term “inhuman” in international human rights law and to suggest a new approach to defining it. The first part of the article highlights the failure of <em>supra</em>-national institutions to provide an independent definition for the term “inhuman”, while mistakenly equating it to other forms of ill-treatment. The second part of the article introduces philosophical concepts necessary for reconstructing the conceptual independence of the term inhuman. It primarily focuses on “the capability approach” and the notion of “human functioning”, as developed by Martha Nussbaum.</p> SONIA BOULOS Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 35 61 10.17561/tahrj.n12.3 Free, Prior and Informed Consent (FPIC) in Mexico: Elements for its Construction and Cchallenges https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4808 <p>Free, Prior and Informed Consent (FPIC) - Consultation has become one of the most powerful tools indigenous people and minorities have to generate a dialogue and begin a negotiation in the country to face Government decisions, private companies seeking to carry out any work or when legislative measures are about to be implemented on their territories with a possibility of damaging them. In Mexico, this right is based over a group of not articulated among themselves normative foundations. This end up causing confusion and uncertainty on its application. This article presents elements to review the FPIC - Consultation foundations in Mexico for discussion and theoretical deepening in the light of human rights.</p> JOSE ISRAEL HERRERA Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 62 83 10.17561/tahrj.n12.4 Extra-Taxation and Property Right in the European Union Law https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4809 <p>Indirect taxes are the essence -and the main priority- of tax harmonization in the European Union. The vast majority of EU tax harmonization directives refer to this type of taxation. At the same time, indirect taxes constitute the field in which the principles of tax justice are less defined, either regarding EU Member States, or the institutions of the European Union. This is an issue about which no explicit reference has been found within the EU original or primary law; we don’t find it in the Treaty of the European Union or in the Treaty on the Functioning of the European Union. The materialization of the fundamental rights in the area of community taxation will be of crucial importance for the concretion of these principles, especially in relation to the property right. Thus, within the fiscal harmonization of indirect taxation, the extra-fiscal perspective and, particularly within it, the environmental issues, are of especial relevance. We should bear in mind that excise duties represent an essential field within tax harmonization and within them, taxation of energy and energy products is paramount. These products, due to their highly pollutant nature, have an environmental transcendence that needs to be taken into consideration.</p> CARLOS MARÍA LÓPEZ ESPADAFOR Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 84 104 10.17561/tahrj.n12.5 Performative Hate Speech Acts. Perlocutionary and Illocutionary Understandings in International Human Rights Law https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4810 <p>The first part of this work analyses the concept of hate speech and its legal-philosophical foundations linked to freedom of speech, through the use of tools provided by current trends in the theory of performativity. The second part, in turn, aims to suggest two possible perspectives on the translation of these philosophical demands into positive legislation within human rights law: the first one based on a liberal conception of freedom as non-interference and a perlocutionary understanding of performative speech acts; the second one adopting a neo-republican interpretation of freedom as non-domination and an illocutionary understanding of speech acts. Finally, the work aims to critically sift through the application of the theory of performativity to the legal definitions that hate speech has acquired within this context.</p> ALESSANDRO DI ROSA Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 105 132 10.17561/tahrj.n12.6 Is Sexual Assistance a Right? https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4811 <p>In this paper I will reflect on sexual assistance, and I will discuss the possibility of shaping sexual assistance as a right. The question of whether sexual assistance is a right can have different answers depending on the framework we are in. We could fall within a purely legal framework, an ethical framework, or a combined framework such as the human rights context. From this point onwards, the question of whether sexual assistance is a right shall depend on the answer to the question regarding the nature of sexual assistance. Sexual assistance for persons that cannot perform sexual activities on their own body can be ethically justified by the theory of needs or by the notion of Instrumental Activities of Daily Living. It can also fall within sexual rights or within the right to choose a way of life.</p> RAFAEL DE ASÍS ROIG Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 133 147 10.17561/tahrj.n12.7 Minority Veto Rights in Kosovo’s Democracy https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4812 <p>The political system of Kosovo belongs to the power sharing democracies. Indeed, it has all the characteristics of Consociational Democracy. In addition to that, minority veto rights are absolute and go above the aims of this type of democracy. As it is designed in current Constitutional arrangements, even a single word of Constitution can’t be changed without minorities’ vote. This is different from other Consociational Democracies, where minorities are entitled with selected veto power only regarding their vital interests, but they cannot block constitutional decision-making. Since Kosovo is among the youngest countries worldwide, this constitutional provision can be a heavy obstacle even in the state building efforts of majority. &nbsp;Therefore, in this article we will try to explain in depth this constitutional arrangement versus principles of sharing power systems and versus similar democracies in the region and wider. The doctrinal constitutional interpretation, descriptive and comparative methods are the main pillars of research methodology.</p> BEHAR SELIMI Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 148 157 10.17561/tahrj.n12.8 Femicide and Gender Violence in Mexico: Elements for a Systemic Approach https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4813 <p>This article aims to address gender violence and femicide through the analysis of several aspects related with its reality and current problematic or conundrum, the new standards to widen gender perspective in the ministerial practices and judicial reasoning, as well as the controversies and tensions generated by the social risk related to impunity and the current control policies and exception categories created to fight femicides and violence against women with the principles and fundaments wherewith the criminal justice system and human rights operate in Mexico.</p> GEOFREDO ANGULO LOPEZ Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 158 183 10.17561/tahrj.n12.9 The Challenge of Ethical-Cultural Pluralism to the Universality of Human Rights https://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/4814 <p>One of the main criticisms directed against the legitimacy of internationally recognized human rights is that they are ethnocentric or parochial. The examination of this objection leads to the conclusion that it is not relativism but cultural-ethical pluralism the main challenge to the universal validity of human rights. Ethical pluralism queries that the justification of human rights that has prevailed since the approval of the UDHR has arbitrarily given, under a deceptive appearance of universality, a weight far superior to individualistic values than to collectivistic. After examining some of the main attempts to overcome this challenge (the constructive theory of human rights and justificatory minimalism), the one based on the defense of a kind of ethical individualism compatible with a moderate ethical objectivism is defended as a preferable alternative.</p> FEDERICO ARCOS RAMÍREZ Copyright (c) 2019 The Age of Human Rights Journal 2019-06-13 2019-06-13 12 184 203 10.17561/tahrj.n12.10