Showing papers on "Fundamental rights published in 2007"

Inventing Human Rights: A History

Abstract: How were human rights invented, and how does their tumultuous history influence their perception and our ability to protect them today? From Professor Lynn Hunt comes this extraordinary cultural and intellectual history, which traces the roots of human rights to the rejection of torture as a means for finding the truth. She demonstrates how ideas of human relationships portrayed in novels and art helped spread these new ideals and how human rights continue to be contested today.

The Relative Universality of Human Rights

Abstract: Human rights as an international political project are closely tied to claims of universality. Attacks on the universality of human rights, however, are also widespread. And some versions of universalism are indeed theoretically indefensible, politically pernicious, or both. This essay explores the senses in which human rights can (and cannot) be said to be universal, the senses in which they are (and are not) relative, and argues for the “relative universality” of internationally recognized human rights.

Human Rights and Empire: The Political Philosophy of Cosmopolitanism

Abstract: Erudite and timely, this book is a key contribution to the renewal of radical theory and politics. Addressing the paradox of a contemporary humanitarianism that has abandoned politics in favour of combating evil, Douzinas, a leading scholar and author in the field of human rights and legal theory, considers the most pressing international questions. Asking whether there ‘is an intrinsic relationship between human rights and the recent wars carried out in their name?’ and whether ‘human rights are a barrier against domination and oppression or the ideological gloss of an emerging empire?’ this book examines a range of topics, including: * the normative characteristics, political philosophy and metaphysical foundations of our age * the subjective and institutional aspects of human rights and their involvement in the creation of identity and definition of the meaning and powers of humanity * the use of human rights as a justification for a new configuration of political, economic and military power. Exploring the legacy and the contemporary role of human rights, this topical and incisive book is a must for all those interested in human rights law, jurisprudence and philosophy of law, political philosophy and political theory.

Why Do Countries Commit to Human Rights Treaties

Abstract: This article examines states' decisions to commit to human rights treaties. It argues that the effect of a treaty on a state - and hence the state's willingness to commit to it - is largely determined by the domestic enforcement of the treaty and the treaty's collateral consequences. These broad claims give rise to several specific predictions. For example, states with less democratic institutions will be no less likely to commit to human rights treaties if they have poor human rights records, because there is little prospect that the treaties will be enforced. Conversely, states with more democratic institutions will be less likely to commit to human rights treaties if they have poor human rights records - precisely because the treaties are likely to lead to changes in behavior. These predictions are tested by examining the practices of more than 160 countries over several decades.

The Practice of Human Rights: Tracking Law Between the Global and the Local

Abstract: Introduction - locating rights, envisioning law between the global and the local Mark Goodale Part I. States of Violence: 1. Introduction Sally Engle Merry 2. The violence of rights - human rights as culprit, human rights as victim Daniel Goldstein 3. Double-binds of self and secularism in Nepal - religion, democracy, identity and rights Lauren Leve Part II. Registers of Power: 4. Introduction Laura Nader 5. The power of right(s) - tracking empires of law and new modes of social resistance in Bolivia (and elsewhere) Mark Goodale 6. Exercising rights and reconfiguring resistance in the the Zapatista Shannon Speed Part III. Conditions of Vulnerability: 7. Introduction Sally Engle Merry 8. Rights to indigenous culture in Colombia Jean Jackson 9. The 2000 UN Human Trafficking Protocol - rights, enforcement, vulnerabilities Kay Warren Part IV. Encountering Ambivalence: 10. Introduction Balakrishnan Rajagopal 11. Transnational legal conflict between peasants and corporations in Burma - human rights and discursive ambivalence under the US Alien Tort Claims Act John Dale 12. Being Swazi, Being Human - custom, constitutionalism and human rights in an African monarchy Sari Wastell 13. Conclusion - Tyrannosaurus Lex - The Anthropology of human rights and transnational law Richard Ashby Wilson.

The Impact of Human Rights Trials in Latin America

Abstract: Since the 1980s, states have been increasingly addressing past human rights violations using multiple transitional justice mechanisms including domestic and international human rights trials. In th...

Subsidiarity as a Structural Principle of International Human Rights Law

Abstract: This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves. Looking at the place of subsidiarity in international law generally, the article argues that subsidiarity is a more accurate and powerful way of understanding the relationship of human rights to international law and to the roles of states in the global community. Using the constitutional structure of the European Union as a starting point, the article presents subsidiarity as a conceptual alternative to classic notions of state sovereigny, which relativizes but does not eliminate the roles of nation states. The analysis shows that in many ways, subsidiarity is already immanent in the existing structures and doctrines of international human rights law, and provides a better explanation for a number of otherwise problematic features of international human rights law, such as the "margin of appreciation" and reservations to universal human rights treaties. Finally, the article defends the idea and use of the principle of subsidiarity against critiques that resist the legal pluralism that subsidiarity fosters and protects. It argues that philosophical, legal and political objections to pluralism in international human rights law are misdirected, and that an international legal system structured in accordance with subsidiarity can best combine the values of universality and diversity that respect for human rights requires.

Business and Human Rights: The Evolving International Agenda

Abstract: The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations, the most visible embodiment of globalization. This paper reviews two recent chapters in this endeavor, focused specifically on human rights: the "Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights," adopted by the United Nations Sub-Commission on the Promotion and Protection of Human Rights but not by its parent body, the UN Human Rights Commission (since replaced by the Human Rights Council); and the author's subsequent UN mandate as Special Representative of the Secretary-General "on the issue of human rights and transnational corporations and other business enterprises." The paper analyzes key conceptual flaws of the draft Norms, noting the pitfalls of imposing on corporations, directly under international law, the same range of human rights duties that states have; it presents an empirical mapping of current international standards and practices regarding business and human rights, ranging from the most deeply rooted international legal obligations to voluntary initiatives; and it proposes a strategy for building on existing momentum in order to reduce human rights protection gaps in relation to corporate activities.

From the right to development to the rights-based approach: how ‘human rights’ entered development

Abstract: This article offers an intellectual genealogy of how the concept of human rights has entered the development discourse—from the formulation of a ‘right to development’ to the rhetorical incorporation of rights within prevailing discourse, to the articulation of a ‘rights-based approach’ to development. It concludes with some propositions about the important role that a focus on rights might play in the practice of international development.

Why It Remains Important to Take Children's Rights Seriously

Abstract: It was Ronald Dworkin who, nearly 30 years ago, urged us to 'take rights seriously' (1977). It is a pity that his argument did not specifically extend to children. The language of rights can make visible what has for too long been suppressed. It can lead to different and new stories being heard in public. The Williamson case draws attention to the importance of children's rights. Rights are also an important advocacy tool, a weapon which can be employed in the battle to secure recognition. Rights offer legitimacy to pressure groups, lobbies, campaigns, to both direct and indirect action, in particular to those who are disadvantaged or excluded. The promotion of children's rights may undermine the interests of others. This is common criticism: for example, it is at the forefront of Guggenheim's recent critique (2005). Keywords: Guggenheim; take children's rights seriously; Williamson case

Human Rights, Inc.: The World Novel, Narrative Form, and International Law

Abstract: In this timely study of the historical, ideological, and formal interdependencies of the novel and human rights, Joseph Slaughter demonstrates that the twentieth-century rise of world literatureand international human rights law are related phenomena. Slaughter argues that international law shares with the modern novel a particular conception of the human individual. The Bildungsroman, the novel of coming of age, fills out this image, offering a conceptual vocabulary, a humanist social vision, and a narrative grammar for what the Universal Declaration of Human Rights and early literary theorists both call the free and full development of the human personality. Revising our received understanding of the relationship between law and literature, Slaughter suggests that this narrative form has acted as a cultural surrogate for the weak executive authority of international law, naturalizing the assumptions and conditions that make human rights appear commonsensical. As a kind of novelistic correlative to human rights law, the Bildungsroman has thus been doing some of the sociocultural work of enforcement that the law cannot do for itself. This analysis of the cultural work of law and of the social work of literature challenges traditional Eurocentric histories of both international law and the dissemination of the novel. Taking his point of departure in Goethe's Wilhelm Meister, Slaughter focuses on recent postcolonial versions of the coming-of-age story to show how the promise of human rights becomes legible in narrative and how the novel and the law are complicit in contemporary projects of globalization: in colonialism, neoimperalism, humanitarianism, and the spread of multinational consumer capitalism.Slaughter raises important practical and ethical questions that we must confront in advocating for human rights and reading world literature-imperatives that, today more than ever, are intertwined.

‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency

Abstract: In the mid- to late-1980s, the discourse of transitional justice was shaped above all by the experience of countries in Latin America, where military forces continued to exercise autonomous power even after ceding formal authority to democratically elected governments. In this setting, while human rights professionals agreed that fledgling democracies should undertake prosecutions in accordance with their international legal obligations, they were divided over the question of whether further development of international obligations in respect of punishment was desirable. Nor was it clear what, precisely, international law already required. Writing in the early 1990s, the author of this essay concluded that States parties to certain international treaties were in general required to prosecute specific crimes. More generally, she argued, wholesale impunity for atrocious crimes was generally incompatible with States’ responsibility to ensure that individuals subject to their power enjoyed fundamental rights. But these duties, she wrote, should not be interpreted to require action incompatible with a nascent democracy’s political or legal capacity. In this essay, the author describes how her views have evolved in the past 15 years. Noting that international legal norms against impunity have grown increasingly strong and arguing that this trend has itself proved a powerful antidote to impunity, the author nonetheless affirms ‘the central importance of promoting the broad participation of victims and other citizens in the process of designing as well as implementing programmes of transitional justice’ and addresses the inherent tension between these values and norms.

Human Rights Without Foundations

Abstract: Using the accounts of Gewirth and Griffin as examples, the article criticises accounts of human rights as those are understood in human rights practices, which regard them as rights all human beings have in virtue of their humanity. Instead it suggests that (with Rawls) human rights set the limits to the sovereignty of the state, but criticises Rawls conflation of sovereignty with legitimate authority. The resulting conception takes human rights, like other rights, to be contingent on social conditions, and in particular on the nature of the international system.

The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?

Abstract: The UN Convention on the Rights of Persons with Disabilities is about more than making sure that existing human rights are applied to persons with disability. It also subtly reformulates and extends existing human rights to take into account the specific rights experience of persons with disability. In fact, the argument can be made that the Convention comes close to creating new rights, or at least very new ways of seeing common rights. This suggests a deeper point about the fragmentation of international human rights law and the increasingly recognized need to take into account the irreducibility of the experience of certain categories of persons. The Disabilities Convention has some interesting lessons to teach about human rights more generally.

Human Rights and the Triumph of the Individual in World Culture

Abstract: Despite ongoing attention to the subject, cultural accounts of the globalization of human rights are surprisingly scarce. Most accounts describe this phenomenon either as a function of evolutionary progress or the rational/strategic action of states and social movement organizations. As a result, they have difficulty explaining both the moral impulse to act on behalf of human rights and the tremendous expansion of the ideology itself. Borrowing insights from global cultural analysis, I argue that the increasing concern for, and elaboration of, human rights points to a world-cultural environment where the individual is increasingly regarded as sacred and inviolable. To demonstrate this, I explore how human rights have developed historically as a `cult of the individual' and present new data on their recent worldwide expansion.

Does Terror Threaten Human Rights? Evidence from Panel Data

Abstract: The paper presents a political economy model linking terror and governments' respect for human rights. Using panel data for 111 countries over the period 1973-2002, we then empirically analyze whether and to what extent terror affects human rights - measured by three indices covering a wide variety of human rights aspects. According to our results, terror substantially diminishes governments' respect for basic human rights such as absence of extrajudicial killings, political imprisonment, and torture. To some extent, civil rights are also restricted as a consequence of terrorism, while we find no effect of terrorism on empowerment rights.

The Lost Promise of Civil Rights

Abstract: Abbreviations Used in the Text Introduction 1. Transition, Uncertainty, and the Conditions for a New Civil Rights 2. Claiming Rights in the Agricultural South 3. Claiming Rights in the Industrial Economy 4. The Work of Civil Rights in the Department of Justice 5. A New Deal for Civil Rights 6. Work and Workers in the NAACP 7. Litigating Labor in the Wartime NAACP 8. Eliminating Work from the NAACP's Legal Strategy 9. Brown and the Remaking of Civil Rights Notes Acknowledgments Index

Poverty and Fundamental Rights: The Justification and Enforcement of Socio-economic Rights

Abstract: Preface Foreword Introduction 1. Towards a Thin Theory of the Good Introduction Value and Point of View Nussbaum and the Notion of a Human Life Rawls and the Concept of the Person Drawing Fact and Value Together: Experience and Purpose In Defence of the Proposed Theory of Value Judgments of Priority Conclusion 2. The Justification of Fundamental Rights Introduction The Presuppositions of Agency and Fundamental Rights Nagel's Strategy: Impersonal and Personal Reasons Political Communities and the Justification of Fundamental Rights Objections Conclusion 3. Determining Our Unconditional Obligations Introduction Unanswered Questions About the Content of Rights Conditional and Unconditional Rights Translating Conditional Rights into Unconditional Rights The Assignment of Duties The Overall Decision Framework Conclusion 4. Justifying the Judicial Review of Fundamental Rights Introduction Theories of Judicial Review Disagreement, Rights, and Judicial Review A Thin Rights-Based Theory of Judicial Review Reaching Optimal Decisions Concerning Fundamental Rights: The Judiciary or the Legislature? Socio-Economic Rights and Judicial Review Conclusion 5. Judicial Review in Practice: The Reasonableness Approach and its Shortcomings Introduction Constitutional Interpretation in South Africa Grootboom: Reasonableness and the Minimum Core Treatment Action Campaign: Reducing Rights to Reasonableness An Alternative Reading of the Jurisprudence? Khosa: Reasonableness and the Confusion of Scope and Content Conclusion 6. Political Philosophy in Action: Developing the Minimum Core Approach to Socio-Economic Rights Introduction Linking Political Philosophy and Legal Doctrine The Case for a Minimum Core Approach Objections to the Minimum Core Approach The Notion of Priority and the Minimum Core Resources, Impossibility, and Rights The Availability of Resources Conclusion Conclusion: Implications for Policy in South Africa and Beyond The Right to Food in the United States, India, and South Africa The Right to Adequate Housing in the United Kingdom, India, and South Africa Conclusion Bibliography Index

Structural Violence as a Human Rights Violation

Abstract: Human rights literature up to this point has not adequately addressed what it means to have structural violations of human rights. This essay uses the theory of structural violence to illuminate how structural inequalities that systematically deny some people their basic human needs constitute a structural violation of human rights. In making this argument, structural violence theorists define violence as the avoidable disparity between the potential ability to fulfill basic needs and their actual fulfillment. The theory further locates the unequal share of power to decide over the distribution of resources as the pivotal causal factor of these avoidable structural inequalities. Recognizing that structural causes are responsible for constrained agency is pivotal in making the transition from structural violence to structural violations of human rights. It is the effect of structures on individual agency that results in this gap between potential and actual fulfillment of rights. This essay uses Thomas Pogge and Amartya Sen’s work on poverty to substantiate this claim that when agency is constrained to the extent that fundamental human needs cannot be attained, structural violence becomes a structural violation of human rights. Applying structural violence to the human rights discourse, there emerges a clear emphasis on the need for special protection of social and economic rights that have for too long been marginalized in favor of civil and political rights. Moreover, the right to development directly addresses concerns raised by the structural violence theory. Specifically, this right recognizes how the unequal distribution of power in global financial institutions and trade regimes results in global inequality and therefore insists on international assistance and cooperation to remedy this glaring injustice. Finally, Audrey Chapman’s ‘violations approach’ is examined as a possible alternative to the current monitoring mechanism for social and economic rights; however this approach falls short in holding the international community responsible for rights violations.

Human Rights: A Very Short Introduction

Abstract: Preface 1. Looking at rights 2. Historical development and contemporary concerns 3. Human rights foreign policy and the role of the United Nations 4. Torture 5. Deprivations of life and liberty 6. Balancing rights - free speech and privacy 7. Food, education, health, housing, and work 8. Discrimination and equality 9. The death penalty Final remarks References Further reading Annex: The Universal Declaration of Human Rights Index

Democratization Reforms in Turkey, 1993–2004

Abstract: The Turkish Constitution, which was drafted in 1982 under the aegis of the military regime, has been the subject of protracted domestic and international criticisms for its shortcomings according to international democratic norms. There had been a number of changes to the Constitution during the 1990s to address some of these shortcomings. In particular, there have been important amendments and changes to the Constitution between 2002 and 2004 that have led to significant improvements in fundamental rights and liberties, political rights, the rule of law, and civil–military relations. This essay examines the changes that have taken place to the Turkish Constitution and their ramifications on Turkish politics.

The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight

Abstract: This article challenges the widespread belief that Western countries have been antagonistic to economic and social human rights. Examining wartime planning, drafting the Universal Declaration and the Covenants, and the development of functional regimes for money, trade, and workers’ rights as well as the European regional human rights regime, we show that Western advocacy of economic and social rights was strong, consistent, and essential to creating the post-war international order, which was intended to consolidate and strengthen Western welfare states. We conclude by considering the sources of the myth of Western opposition and its contemporary implications.

Introduction : Locating rights, envisioning law between the global and the local

Abstract: In January 2002 Fiji presented its first ever country report to the United Nations committee charged with monitoring compliance with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). One of the most controversial sections of the report addressed the use of the practice of bulubulu , or village reconciliation, in cases of rape. During the public presentation of the report in New York City by Fiji's Assistant Minister for Women, the nuances of bulubulu as a sociolegal practice in postcolonial Fiji were obscured within what quickly became complicated layers of political miscommunication, the imperatives of a surging Fijian nationalism, and, as always, the politicization of culture. On the one hand, the CEDAW committee, though staffed by members from a range of different countries, was required by its UN mandate to fulfill a fairly simple task: to decide whether individual countries were taking the requirements of CEDAW seriously, as measured by national self-assessments of violence against women and official responses to this violence. But, on the other hand, because CEDAW expresses both the conceptual and practical constraints of universal human rights discourse, the UN committee was prevented from considering the social contexts within which bulubulu functions in Fiji. To open up the possibility that CEDAW's requirements for defining, preventing, and redressing violence against women were contingent upon their correspondence with circumstance, tradition, or instrumental efficacy would be to deracinate CEDAW, to destroy its potential as one key component in a still-emergent international human rights system.

Proportionality in Canadian and German Constitutional Jurisprudence

Abstract: one. The Constitutional Court does not recognize a hierarchy among the various fundamental rights. The balance, therefore, must be concrete or, in the Canadian terminology, contextual. One question is how deeply the right is infringed. Another question is how serious the danger for the good protected by the law is, and how likely it is that the danger will materialize. Furthermore, the degree to which the impugned law will protect the good against the danger must be measured against the degree of intrusion. Yet this concept is by no means alien to the Canadian Court. Already in Oakes, Chief Justice Dickson admitted that a full protection of fundamental rights is impossible without the third step. ‘Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve.’ The similarity to the German approach becomes even clearer in Thomson Newspapers v. Canada (A.G.), where the Court states that the third step of the proportionality test performs a role fundamentally distinct from the previous steps: The focus of the first and second steps of the proportionality analysis is not the relationship between the measures and the Charter right in question, but rather the relationship between the ends of the legislation and the means employed. . . . The third stage of the proportionality analysis provides an opportunity to assess . . . whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter. The explanation for this gap between the Court’s reasoning and its practice must be sought in the fact that the elements relevant to the third step have already been dealt with in previous stages. The importance of the objective has generally been determined in the preliminary step, where the Court not only ascertains the purpose of the law but asks, in addition, whether it is sufficiently ‘pressing and substantial’ to justify a limitation of Charter rights. The effects of the infringement on the beneficiaries of the protection are considered in connection with the existence of an infringement in the two prior steps of the test, so that not much remains to be said when the Court reaches the third step. Consequently, the source of unconstitutional limitations always has been found in earlier stages. The outside observer gets the impression that the Canadian Supreme Court avoids the third step out of fear that a court might make policy decisions at this stage rather than legal decisions. Constitutional scholars 40 Oakes, supra note 2 at para.71. 41 [1998] 1 S.C.R. 877 [Thomson]. 42 Ibid. at para. 125. 394 UNIVERSITY OF TORONTO LAW JOURNAL

Standard Setting in Human Rights: Critique and Prognosis

Abstract: This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order - which is defined by multiple asymmetries - determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy across various divides.

Individual rights and collective rights: Labor's predicament in China

Abstract: Despite the government's active legislation to protect workers, labor rights still remain widely ignored and poorly enforced in China. Structural constrains, such as the state's development strategy biased on efficiency over equity, tight labor markets, and the lack of an effective safety net, cannot fully explain why Chinese workers have had so little impact on the environment in which they work and the violations of their rights often occur. Using Marshall's theory of citizenship rights, this article explores the structure of China's labor rights for an explanation. It argues that while Chinese labor legislation stipulates workers' individual rights regarding contracts, wages, working conditions, pensions, and so on, it fails to provide them with collective rights, namely the rights to organize, to strike, and to bargain collectively in a meaningful sense. The lack of collective rights is one of the major factors that render workers' individual rights vulnerable, hollow, unenforceable, or often disregarded. Labor legislation that enables workers to act collectively is crucial for safeguarding their individual rights.

Transnational Networks, International Organizations and Political Participation in Cambodia: Human Rights, Labour Rights and Common Rights

Abstract: Much international attention has been focused upon the promotion of a civil society in Cambodia, able to demand transparency and accountability from the Cambodian government. This article argues that international agencies, although apparently supportive of civil society, have in fact undermined the representation of collective interests in Cambodia through insistence on highly regulated and atomizing modes of participation, aimed at demobilizing and depoliticizing contentious groups in Cambodian society, and routing contentious politics through internationally sanctioned sites of participation. This trend in international engagement is traced across three issue areas – human rights, labour rights, and common rights in the forestry sector. In each case, it is argued, international agencies promoting neo-liberal agendas have taken the lead, at the expense of potentially radical transnational networks. The international backing awarded to local organizations has been highly conditional, and these organizati...

Learning from Difference : The New Architecture of Experimentalist Governance in the European Union

Abstract: This paper argues that current widespread characterizations of EU governance as multi-level and networked overlook the emergent architecture of the Union’s public rule making. In this architecture, framework goals (such as full employment, social inclusion, “good water status”, a unified energy grid) and measures for gauging their achievement are established by joint action of the member states and EU institutions. Lower-level units (such as national ministries or regulatory authorities and the actors with whom they collaborate) are given the freedom to advance these ends as they see fit. But in return for this autonomy, they must report regularly on their performance and participate in a peer review in which their results are compared with those pursuing other means to the same general ends. Finally, the framework goals, performance measures, and decision-making procedures themselves are periodically revised by the actors, including new participants whose views come to be seen as indispensable to full and fair deliberation. Though this architecture cannot be read off from neither Treaty provisions nor textbook accounts of the formal competences of EU institutions, the paper traces its emergence and diffusion across a wide range of policy domains, including telecommunications, energy, drug authorization, occupational health and safety, employment promotion, social inclusion, pensions, health care, environmental protection, food safety, maritime safety, financial services, competition policy, state aid, anti-discrimination policy and fundamental rights.