human rights

The Problem of Recognition of Human Rights: Does Explicative-Existential Justification Really Work?

Dr Martin Hapla

Masaryk University

English abstract: This paper analyses Robert Alexy’s explicative-existential justification of human rights. The author identifies several problems that are associated with it. An analysis of Alexy’s explicative argument suggests that it cannot cope with the transition from facts to norms. Notably, this argument does not explain why its requirements cannot be overruled by some other moral reason (for example, the utility principle). The answer that Alexy offers in his existential argument is not considered sufficient by the author of this paper. Although this argument complements the necessary normative premises, the existential decision preferred by Alexy is not the only one necessary. It can be admitted that for many people such a decision is attractive. However, even if we accept that explicative-existential justification is credible in some context, it is correct to apply it only to the rights of persons and not to the rights of human beings. In the final part, the author shows that the claim that this theory can justify even the rights of human beings who are not persons is indefensible.

Keywords: human rights, justification, explicative-existential justification, is-ought problem, universality of human rights

Language: English

Published: Number 2(27)/2021, pp. 5-15.

DOI: https://doi.org/10.36280/AFPiFS.2021.2.5

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Number of downloads: 35

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Improving Global Public Health: Responsiveness to Public Interest Considerations in Intellectual Property Law

Prof. UG dr hab. Maciej Barczewski, prof. UG dr hab. Sebastian Sykuna

University of Gdańsk

English abstract: Over the past few years the WTO Council for Trade-Related Aspects of Intellectual Property Rights recognized the growing concern over an imbalance between intellectual property and public interest. With regard to health technologies in particular, without sufficient use of balancing exceptions and limitations, patents and related monopoly rights primarily serve to protect corporate interests of the pharmaceutical industry. The broadest possible use of compulsory licenses is one of the essential measures that can contribute to increase in responsiveness to public interest considerations in defining the boundaries of the IP-related components that determine access to medicines. Another instrument is the process of interpretation and implementation of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), which aims not only at clarifying the meaning of the provisions or determining the intentions of the parties to this treaty, but sets sights on reconciling its competing objectives. The need to interpret and implement the TRIPS Agreement in a way that protects public interest is confirmed by the obligation of acting “in a manner conducive to social and economic welfare” under Article 7 of the Agreement. Moreover, Article 8 allows to adopt “measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development”. Therefore, in the context of the problem of access to medicines, the important role of human rights as an instrument for the prevention of abuse of intellectual property rights and the restoration of their balance, taking into account the interests of both the beneficiaries of protection and the general public, should be emphasized.

Keywords: intellectual property, WTO, human rights, public interest, patents, access to medicines, TRIPS

Language: English

Published: Number 3(24)/2020, pp. 66-78.

DOI: https://doi.org/10.36280/AFPiFS.2020.3.66

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Number of downloads: 93

Reflexivity and transitional justice research

Mgr Michał Krotoszyński

Adam Mickiewicz University in Poznań

English abstract: The article explores ways in which the notion of reflexivity can apply to the research on transitional justice. First, the article describes reflexive considerations concerning the state of the field itself. Then, the reflections on transitional justice measures are characterized, focusing primarily on the discussion on the use of criminal trials. Finally, the article portrays how collective and individual identity can be reshaped during the transition. The article argues that research on dealing with the past is par excellence reflexive, as the debate challenges even the most basic ideas connected with transitional justice.

Keywords: cultural relativism, dealing with the past, human rights, political transition, reflexive law, reflexivity, transitional justice, universalism

Language: Polish

Published: Number 2(11)/2015, p. 59-68.

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Number of downloads: 146