Showing papers on "Fundamental rights published in 2014"

The Fundamentalism of Liberal Rights: Decoding the Freedom of Expression Under the European Convention for the Protection of Human Rights and Fundamental Freedoms

Abstract: This paper attempts to deconstruct the free speech defense of the publications of cartoons offensive to many Muslims in Denmark and elsewhere in Europe in order to highlight the deep philosophical tensions between the characterizations of religion and race, between free speech and hate speech, and between the freedoms of expression and of religion. A scrutiny of the jurisprudence of the European Court of Human Rights (“ECtHR”) reveals the difficulties inherent in defining permissible limits on expression, particularly as it involves the identification and prioritization of interests that are worthy of protection under a state's law. The struggles over the characterization of certain interests as fundamental rights, in turn, raise questions over the ‘fundamental-ness' of rights and the valuation of foundational social and political values that the rhetoric of rights presumes as incontrovertible. This study seeks to advance the argument that fundamental rights, such as the freedom of expression, are legal constructs whose value is contingent on the ends they are employed to serve in a given socio-political environment. While the contingency of fundamental rights is palpable in debates over their definition and over what they include or exclude, it is most clearly visible in the clash of fundamental rights, in particular the freedoms of expression and religion.

Respect for Human Rights Has Improved Over Time: Modeling the Changing Standard of Accountability

Abstract: According to indicators of political repression currently used by scholars, human rights practices have not improved over the past 35 years, despite the spread of human rights norms, better monitoring, and the increasing prevalence of electoral democracy. I argue that this empirical pattern is not an indication of stagnating human rights practices. Instead, it reflects a systematic change in the way monitors, like Amnesty International and the US State Department, encounter and interpret information about abuses. The standard of accountability used to assess state behaviors becomes more stringent as monitors look harder for abuse, look in more places for abuse, and classify more acts as abuse. In this paper, I present a new, theoretically informed measurement model, which generates unbiased estimates of repression using existing data. I then show that respect for human rights has improved over time and that the relationship between human rights respect and ratification of the UN Convention Against Torture is positive, which contradicts findings from existing research.

The International Human Rights Movement: Part of the Problem?

Abstract: Pragmatic evaluation means specifying the benefits and harms which might attend human rights initiatives in particular cases, under specific conditions, in particular time periods, and so forth. Those cases, conditions, times may be extremely specific or very general but they need to be articulated, and ultimately demonstrated, in concrete terms. Costs might include things which happen on the ground to potential victims and violators of human rights, or to other people. The costs/benefits vocabulary suggests that one could know at an abstract and general level what to count as a cost or a benefit of the initiative. Critics have linked the human rights project to liberal Western ideas about the relationships among law, politics and economics. Human rights encourage people to seek emancipation in the vocabularies of reason rather than faith, in public rather than private life, in law rather than politics, in politics rather than economics.

The Twilight of Human Rights Law

Abstract: Introduction Chapter 1. The History of International Human Rights Law 1.1. Prehistory-Before World War II 1.2. The Universal Declaration 1.3. The Cold War Era 1.4. The Modern Era Chapter 2. The Law and Institutions of Human Rights 2.1. The Proliferation of Treaties 2.2. The UN Committees, Council, and High Commission 2.3. The European Court and Other Regional Bodies 2.4. International Criminal Law and Judicial Institutions 2.5. National Institutions Chapter 3. Why Do States Enter Human Rights Treaties? 3.1 To Improve Human Rights 3.2 The Costs of Entering Human Rights Treaties 3.3 The 'Western Imperialism' Criticism and Its Limits Chapter 4. Do States Comply with Human Rights Treaties? 4.1. Human Rights Treaties and the Question of Compliance 4.2. Statistical Studies: What They Show Chapter 5. Why Do States Comply or (Not Comply) With Human Rights Treaties? 5.1 International Incentives to Comply 5.2 Domestic Incentives to Comply 5.3 Ambiguity and Inconsistency 5.4 Why International Organizations Are No Solution 5.5 A Failure of Will 5.6 The Problem of Epistemic Uncertainty 5.7 The Importance of Political Participation 5.8 Reprise Chapter 6. Human Rights and War 6.1 The Human Rights Peace 6.2 Humanitarian Intervention 6.3 The League of Democracies Chapter 7. A Fresh Start: Human Rights and Development 7.1 Three Dead Ends 7.2 The White Man's Burden

Report of the Special Rapporteur on Extreme Poverty and Human Rights

Abstract: In the present report, the Special Rapporteur on extreme poverty and human rights, Magdalena Sepulveda, presents fiscal policy, and particularly taxation policies, as a major determinant in the enjoyment of human rights. Taxation is a key tool when tackling inequality and for generating the resources necessary for poverty reduction and the realization of human rights, and can also be used to foster stronger governance, accountability and participation in public affairs. The paper outlines relevant human rights obligations to guide and inform State revenue-raising practices, including the duty to use the maximum available resources for the realization of economic, social and cultural rights. It also analyses the questions of how the principles of non-discrimination and equality and the duty of international cooperation and assistance should inform taxation policies at the global and national levels. After assessing how revenue-raising policies and practices can be strengthened through a human rights-based approach, the paper makes recommendations for fiscal and tax policies that are grounded in human rights and can lead to poverty reduction, sustainable development and the realization of transformative rights.

Putting “Traditional Values” Into Practice: The Rise and Contestation of Anti-Homopropaganda Laws in Russia

Abstract: This article explores how “traditional values” are being used by the Russian government to refute the claim that “LGBT rights are human rights” and justify the introduction of anti-homopropaganda laws, and how members of the Russian LGBT community have sought to contest it. Centrally, it traces the development of a discourse that refutes the essentialization of sexual identity and, in doing so, seeks to challenge the focus on individual identity-based rights of contemporary human rights norms. This discursive shift has meant that opponents of the legislation have had to develop contestation strategies that collectively seek to present an alternative interpretation of “traditional values.” The article concludes by considering the implications of the Russian case for human rights norms and for the notion of universal human rights more widely, arguing that it represents a serious challenge to the viability of identity-based LGBT rights claims as a basis on which to advance observance of fundamental human rig...

New Bearings in the Sociology of Law

Abstract: Conventionally, normative and analytical philosophical approaches (i.e., those of Rawls, Dworkin, Alexy, etc) occupied an unshakably dominant position in constitutional theory. Theories of constitutional rule typically isolated the aspect of constitutionalism concerned with fundamental rights from other constitutional functions, and they usually revolved around the attempt to explain constitutions as documents expressing rationally defensible norms to govern the distinctively public exchanges of society. This dominance of analytical theory in constitutional inquiry was flanked and reinforced by the fact that ‘sociolegal’ analysis – with its own particular methodologies and emphases – had retreated from, or in fact had never really taken occupancy of, the sphere of constitutional debate, and it tended to concern itself with questions located in the sphere of private law, in regulation, or in criminology; the primary overlap of sociolegal analysis with a particular subdiscipline of law is clearly still now with criminology. In the rare cases in which more conventional sociological reflection placed a focus on constitutional law, for instance, in the works of Gunther Teubner and other theorists influenced by him, it usually located constitutional law on a continuum with private law. Indeed, the connection between constitutional law and private law was already anticipated by the very earliest sociotheoretical reflections on constitutional law – for instance, in the writings of theorists as diverse as Savigny and Marx. In contemporary debate, the indifference of legal sociology toward constitutional law (construed categorically as public law) is no doubt in part attributable to the fact that the field of sociolegal studies evolved in tandem with the development of research on legal pluralism and with the growth of attendant theoretical and explanatory models. In the spirit of Eugen Ehrlich, analysis of legal pluralism was historically associated with the sphere of private–legal relations, which meant that sociolegal inquiry into constitutional norms was also directed toward the domain of

Tenth Annual Brown Lecture in Education Research A New Civil Rights Agenda for American Education

Abstract: This article reviews the impacts of the civil rights policies framed in the 1960s and the anti–civil rights political and legal movements that reversed them. It documents rising segregation by race and poverty. The policy reversals and transformation of U.S. demography require a new civil rights strategy. Vast immigrations, the sinking White birthrate and massive suburban change means it must be multiracial and metropolitan and reflect the huge increase in students from language-minority homes. School policy must be linked with social and economic policy. Housing integration is critical since residence is often destiny for children of color. Researchers are key participants in developing new policies and explaining possibilities for positive change within a stalemated political and legal system. The article outlines essential components of a new civil rights policy.

Multinational corporations’ economic and human rights impacts on developing countries: a review and research agenda

Abstract: Developing countries are attracting a significant portion of global foreign direct investments. Governments of such countries often compete fiercely for attracting multinational corporations (MNCs) in the expectation of the advantages they will bring to their economies, often prioritising economic goals over fundamental human rights. For a long time, economists have analysed the economic impacts of MNCs, while a parallel strand of work in political science, business ethics and international law investigates the repercussions of MNC operations on human rights. Despite the significant relatedness and complementarities, these two bodies of literature have so far poorly interacted. This paper addresses this limitation and systematically analyses and integrates existing micro-level empirical evidence on the economic and human rights impacts of MNCs on developing countries. It provides a critical analysis of what is known and highlights what we do not know about the factors that mediate the positive and/or negative impacts of MNC operations on host developing countries. Based on a critical analysis of the literature, it discusses avenues for future research in this field and sets the grounds for a new interdisciplinary research agenda on this subject.

A Powerless Companion: Human Rights in the Age of Neoliberalism

Abstract: I INTRODUCTION It is increasingly common to claim that international human rights law is a neoliberal phenomenon. And certainly the common timing is right: the human rights revolution and the victory of market fundamentalism have been simultaneous. In an important new essay, Marxist international lawyer Susan Marks compares Naomi Klein's The Shock Doctrine with my own recent history of international human rights, which emphasizes the 1970s as the moment of breakthrough for their ascent. Both histories, Marks observes, ascribe the newfound visibility of human rights to their promise to transcend formerly attractive political options east and west that seemed inadequate or even dangerous. (1) "For her too," Marks acknowledges of Klein's treatment, "the human rights movement as we know it today took shape during the 1970s. And for her too, a defining characteristic of the new movement was its non-political creed." (2) But for Marks, Klein succeeds by unveiling the neoliberal circumstances of human rights that have permanently defined their trajectory: [S]he considers that a rather important aspect of the context for the movement's emergence is one Moyn omits to mention: the rise in that period of the neo-liberal version of 'private' capitalism, with its now familiar policy prescription of privatisation, deregulation and state retreat from social provision. To its influential enthusiasts then and now, that is the last utopia.... From Klein's perspective, then, the history of human rights cannot be told in isolation from developments in the history of capitalism." (3) (At this point Marks notes that Milton Friedman won the Nobel prize for economics in 1976, the year before Amnesty International was given the Nobel peace prize.) Friedrich Hayek, the guru of neoliberalism, was as impressed a witness of the human rights revolution of the 1970s as anyone else. But it is interesting that, although occasionally an advocate of the constitutionalization of basic liberties like freedom of speech and press, he was in fact an acerbic critic of that revolution. In an interview, he described the spike in talk around human rights associated with Jimmy Carter's election to the American presidency as a strange fad, which (like all fashions) risked excess: I'm not sure whether it's an invention of the present administration or whether it's of an older date, but I suppose if you told an eighteen year old that human rights is a new discovery he wouldn't believe it. He would have thought the United States for 200 years has been committed to human rights, which of course would be absurd. The United States discovered human rights two years ago or five years ago. Suddenly it's the main object and leads to a degree of interference with the policy of other countries which, even if I sympathized with the general aim, I don't think it's in the least justified.... But it's a dominating belief in the United States now. (4) All the same, since that moment of modish popularity, the staying power of human rights has led to many more positive visions of the essential harmony--if not identity--of economic liberalism and international human rights. The Marxist left, indeed, is hardly the only source of claims concerning the synergetic relationship between the advancement of market freedoms and human rights. (5) If anything, it is much more common to promote neoliberalism as an agent of the advancement of human rights rather than to link them as malign accomplices. Perhaps most notably, Ernst-Ulrich Petersmann argues that, although human rights law may exact some costs to efficiency, the general relationship between economic liberty and human rights is productive and strong, so much so that promoting the former and latter are not very different enterprises. (6) He writes: [E]njoyment of human rights require[s] the use of dispersed information and economic resources that can be supplied most efficiently, and most democratically, through the division of labour among free citizens and through liberal trade promoting economic welfare, the freedom of choice and the free flow of scarce goods, services, and information across frontiers in response to supply and demand by citizens. …

The EU Charter of Fundamental Rights: A Commentary

Abstract: The Charter of Fundamental Rights of the European Union enshrines the key political, social and economic rights of EU citizens and residents in EU law. In its present form it was approved in 2000 by the European Parliament, the Council of Ministers and the European Commission. However its legal status remained uncertain until the entry into force of the Treaty of Lisbon in December 2009. The Charter obliges the EU to act and legislate consistently with the Charter, and enables the EU's courts to strike down EU legislation which contravenes it. The Charter applies to EU Member States when they are implementing EU law but does not extend the competences of the EU beyond the competences given to it in the treaties. This Commentary on the Charter, the first in English, written by experts from several EU Member States, provides an authoritative but succinct statement of how the Charter impacts upon EU, domestic and international law. Following the conventional article-by-article approach, each commentator offers an expert view of how each article is either already being interpreted in the courts, or is likely to be interpreted. Each commentary is referenced to the case law and is augmented with extensive references to further reading. Six cross-cutting introductory chapters explain the Charter's institutional anchorage, its relationship to the Fundamental Rights Agency, its interaction with other parts of international human rights law, the enforcement mechanisms, extraterritorial scope, and the all-important 'Explanations'.

The Future of Human Rights

Abstract: This essay summarizes the author’s argument for the recent genesis of international human rights and asks what implications for the future that argument has. The essay lays emphasis on the mobilizational origins of current human rights, and insists on the need to reorient them away from the historically specific and politically minimalist compromise between Utopianism and realism that human rights current represent.

Universality or Diversity of Human Rights? † Strasbourg in the Age of Subsidiarity

Abstract: Over the past few years, the European Court of Human Rights has been criticised in several extrajudicial speeches in the United Kingdom. In this article the author, a judge of the Strasbourg Court, analyses some of this criticism, focussing especially on Lord Hoffmann’s views in his 2009 farewell lecture, The Universality of Human Rights ,a s well as discussing some more recent speeches by senior British judges. The author argues that, contrary to some of this criticism, the Strasbourg Court has gradually developed its approach in relation to the principle of subsidiarity and the margin of appreciation by adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights. In this way, the Court has demonstrated its willingness to defer to the reasoned and thoughtful assessment by national authorities of their Convention obligations. In this connection, the article then discusses briefly the case law of the Strasbourg Court on the exhaustion of domestic remedies in relation to declarations of incompatibility under the Human Rights Act 1998 (UK).

The EU Charter of Fundamental Rights

Abstract: The Charter of Fundamental Rights of the European Union enshrines the key political, social and economic rights of EU citizens and residents in EU law In its present form it was approved in 2000 by the European Parliament, the Council of Ministers and the European Commission However its legal status remained uncertain until the entry into force of the Treaty of Lisbon in December 2009 The Charter obliges the EU to act and legislate consistently with the Charter, and enables the EU's courts to strike down EU legislation which contravenes it The Charter applies to EU Member States when they are implementing EU law but does not extend the competences of the EU beyond the competences given to it in the treaties

Private Regulation and Trade Union Rights: Why Codes of Conduct Have Limited Impact on Trade Union Rights

Abstract: Codes of conduct are the main tools to privately regulate worker rights in global value chains. Scholars have shown that while codes may improve outcome standards (such as occupational health and safety), they have had limited impact on process rights (such as freedom of association and collective bargaining). Scholars have, though, only provided vague or general explanations for this empirical finding. We address this shortcoming by providing a holistic and detailed explanation, and argue that codes, in their current form, have limited impact on trade union rights due to (i) buyers paying lip service to trade union rights, (ii) workers being treated as passive objects of regulation in codes of conduct, (iii) auditing being unable to detect and remediate violations of trade union rights, (iv) codes emphasizing parallel means of organizing, (v) suppliers having limited incentives for compliance, and (vi) codes being unable to open up space for union organizing when leveraged in grassroots struggles. Our arguments suggest that there is no quick fix for codes’ limited impact on trade union rights, and that codes, in their current form, have limited potential to improve trade union rights. We conclude by discussing ways in which codes of conduct, and private regulation of worker rights more generally, could be transformed to more effectively address trade union rights.

International Human Rights Law: Cases, Materials, Commentary

Abstract: The leading textbook on international human rights law is now better than ever. The content has been fully updated and now provides more detailed coverage of substantive human rights, along with new sections on the war on terror and on the progressive realization of economic and social rights, making this the most comprehensive book in the field. It has a new, more student-friendly text design and has retained the features which made the first edition so engaging and accessible, including the concise and critical style, and questions and case studies within each chapter, as well as suggestions for further reading. Written by De Schutter, whose extensive experience working in the field and teaching the subject in both the US and EU gives him a unique perspective and valuable insight into the requirements of lecturers and students. This is an essential tool for all students of international human rights law.

A social science of human rights

Abstract: Why do governments abuse human rights, and what can be done to deter and reverse abusive practices? This article examines the emerging social science on these two questions. Over the last few decades, scholars have made consid- erable progress in answering the first one. Abuse stems, centrally, from conflict and institutions. Answers to the sec- ond question are more elusive because data are scarce and the relationships between cause and effect are hard to pin down. Lively debates concern the effectiveness of tools such as military intervention, economic policy, international law, and information strategies for protecting human rights. The evidence suggests that despite the explosion of inter- national legal instruments, this strategy has had impact only in special circumstances. Powerful states play central roles in protecting human rights through sanctions, impartial military intervention, and other tools - often applied unilaterally, which suggests that there is an ongoing tension between the legitimacy of broad multilateral legal insti- tutions and narrower strategies that actually work. The best approaches to managing human rights depend on the political organization of the abuser. Where strong centralized organizations are the problem, the best strategies alter the incentives of leaders at the top; where abuse arises from disarray, such as during civil war or fragile democratic transition, the key tasks include reducing agency slack and making organizations stronger and more accountable.

Latin American Countries as Norm Protagonists of the Idea of International Human Rights

Abstract: Latin American governments, social movements, and regional organizations have made a far greater contribution to the idea and practice of international human rights than has previously been recognized. Most discussions of the global human rights regime stress its origins in the countries of the Global North. This article explores the role of Latin America states as early protagonists of the international protection of human rights, focusing in particular on the American Declaration of the Rights and Duties of Man. Histories of human rights in the world emphasize the Universal Declaration of Human Rights, passed by the UN General Assembly on 10 December 1948, as the founding moment of international human rights. Few know that Latin American states passed a similar American Declaration of the Rights and Duties of Man a full eight months before passage of the UDHR. The American Declaration thus was the first broad enumeration of rights adopted by an intergovernmental organization. This article explores the A...

Economic, Social, and Cultural Rights as Human Rights

Abstract: This volume offers a selection of those major contributions which have shaped debate in the field of economic, social and cultural rights. The broad range of discussion includes: the nature of economic, social and cultural rights and the ability of courts to protect them; the effectiveness of non-judicial protective mechanisms at both the universal and the domestic level; ways of measuring whether states do enough to ‘progressively realize’ these rights; the impact of trade and investment liberalization, and of economic globalization generally, on the fulfilment of such rights; and the role of economic, social and cultural rights in development. The editor's original introduction provides an insight into the background to the debate and maps the alternative views which coexist in this highly contentious area.

Martii Koskenniemi on Human Rights: An Empirical Perspective

Abstract: Martii Koskenniemi argues that human rights law is indeterminate, and that arguments based on human rights unavoidably reflect the policy preferences of the speaker. I connect this argument to empirical evidence of the failure of international human rights treaties to improve human rights in countries that have ratified them. I argue that many features of the human rights regime that are celebrated by lawyers — the large number of treaties, the vast number of rights, the large amount of institutionalization, and the involvement of NGOs — actually reflect the failure of the regime. Governments tolerate these developments because they add to the indeterminacy of the legal regime, freeing them to act in the public interest when they are motivated to do so.

A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis

Abstract: This article seeks to explore the human rights jurisdiction of the Court of Human Rights and European Court of Justice, and most particularly to study how they interact with each other. How do they acknowledge each other’s existence; how often do they cite each other’s case law; how, if at all, does their human rights jurisprudence differ from each other; how, if at all, does the bringing of a case in one court rather than the other affect its outcome; how does the courts’ use of each other’s materials differ from traditional comparative law usages; how does the close development of two near, but not identical, human rights jurisdictions in Europe affect the development of human rights in the European legal space?

The law's majestic equality ? the distributive impact of litigating social and economic rights

Abstract: Optimism about the use of laws, constitutions, and rights to achieve social change has never been higher among practitioners. But the academic literature is skeptical that courts can direct resources toward the poor. This paper develops a nuanced account in which not all courts are the same. Countries and policy areas characterized by judicial decisions with broader applicability tend to avoid the potential anti-poor bias of courts, whereas areas dominated by individual litigation and individualized effects are less likely to have pro-poor outcomes. Using data on social and economic rights cases in five countries, the authors estimate the potential distributive impact of litigation by examining whether the poor are over or under-represented among the beneficiaries of litigation, relative to their share of the population. They find that the impact of courts varies considerably across the cases, but is positive and pro-poor in two of the five countries (India and South Africa), distribution-neutral in two others (Indonesia and Brazil), and sharply anti-poor in Nigeria. Overall, the results of litigation are much more positive for the poor than conventional wisdom would suggest.

A Roadmap for Assimilating Authors’ and Users’ Human Rights into International Copyright Law

Abstract: This thesis argues that international copyright law should play a stronger role in the implementation of authors’ and users’ international human rights. In international human rights law, authors’ and users’ human rights are two sides of the same coin: both derive from human dignity and contribute to the development of the human personality. Authors have a set of moral and material interests that entitle them, as a minimum, to an adequate standard of living, to be (or not to be) associated with their intellectual works, and to object to any distortion or mutilation of those works. These entitlements receive a viable back up protection from authors’ human rights to freedom of expression and property. At the same time, users have human rights in culture, arts, and science that entitle them to access, use, and share intellectual works. Also, their human rights to freedom of expression and education reinforce these entitlements. Authors’ and users’ human rights are reciprocal, mutually-reinforcing, and mutually-limiting. Thus, their balanced implementation— by means of legislation or adjudication—depends on three rules: authors’ and users’ human rights are limited, they are not hierarchal, and they are interdependent on and indivisible from other human rights and freedoms. On the other hand, despite its practicality and predominance, the exclusiveright system of international copyright law does not necessarily enable authors to achieve an adequate standard of living, and TRIPS has explicitly overlooked their

Human Rights for the Digital Age

Abstract: Human rights are those legal and/or moral rights that all persons have simply as persons. In the current digital age, human rights are increasingly being either fulfilled or violated in the online environment. In this article, I provide a way of conceptualizing the relationships between human rights and information technology. I do so by pointing out a number of misunderstandings of human rights evident in Vinton Cerf's recent argument that there is no human right to the Internet. I claim that Cerf fails to recognize the existence of derived human rights. I argue further that we need to consider what other human rights are necessitated by the digital age. I suggest we need a Declaration of Digital Rights. As a step toward the development of such a declaration, I suggest a framework for thinking through how to ensure the human rights are satisfied in digital contexts.