Group items tagged

"This paper defends several highly revisionary theses about human rights. Section 1 shows that the phrase 'human rights' refers to two distinct types of moral claims. Sections 2 and 3 argue that several longstanding problems in human rights theory and practice can be solved if, and only if, the concept of a 'human right' is replaced by two more exact concepts: International human rights: moral claims sufficient to warrant coercive domestic and international social protection. Domestic human rights: moral claims sufficient to warrant coercive domestic social protection but only non-coercive international action. Section 3 then argues that because coercion is central to both types of human rights, and coercion is a matter of justice, the traditional view of human rights - that they are normative entitlements prior to and independent of substantive theories of justice - is incorrect. Human rights must instead be seen as emerging from substantive theories of domestic and international justice. Finally, Section 4 uses this reconceptualization to show that only a few very minimal claims about international human rights are presently warranted. Because international human rights are rights of international justice, but theorists of international justice disagree widely about the demands of international justice, much more research on international justice is needed - and much greater agreement about international justice should be reached - before anything more than a very minimal list of international human rights can be justified."

When we study human rights empirically, what do we mean to study? The existence of institutions that enable the realization of rights or the enjoyment of those rights? The absence of flagrant violations of some of the basic individual rights or the sense that one's rights will not be flagrantly violated? What theory of human rights should we use? Most positive theory of human rights-for example, empirical theories about the correlation between political institutions or economic conditions on human rights recognition-are based on the first kind of normative human rights theory, the one that defines rights outside of the struggle for them. This article puts forward a methodology for the empirical study of human rights from the inside: do people enjoy their human rights? Using the Latin American Public Opinion Project democracy survey database, the authors propose a new way to measure human rights.

When we study human rights empirically, what do we mean to study? The existence of institutions that enable the realization of rights or the enjoyment of those rights? The absence of flagrant violations of some of the basic individual rights or the sense that one's rights will not be flagrantly violated? What theory of human rights should we use? Most positive theory of human rights-for example, empirical theories about the correlation between political institutions or economic conditions on human rights recognition-are based on the first kind of normative human rights theory, the one that defines rights outside of the struggle for them. This article puts forward a methodology for the empirical study of human rights from the inside: do people enjoy their human rights? Using the Latin American Public Opinion Project democracy survey database, the authors propose a new way to measure human rights.

"Michel Foucault is not often read as a theorist of human rights. On the one hand, there is a tendency to read his works of the mid-1970s - his celebrated poststructuralist genealogies of subjectivity, of discipline, of bio-politics, and so forth - as proposing a critique of rights discourse which definitively rules out any political appeal to rights. On the other hand, somewhat curiously it has to be said, there is a tendency to read his works of the late 1970s and early 1980s - his perhaps less celebrated concern with ethics and with technologies of the self - as tacitly re-introducing a liberal humanist notion of subjectivity and, with that, an embrace of orthodox rights discourse. Beginning from this curious disjunction between the rejectionist Foucault and the liberal Foucault, this article attempts to articulate a Foucauldian politics of human rights along the lines of a critical affirmation. Neither a full embrace nor a total rejection of human rights, the Foucauldian politics of human rights developed here elaborates (and attempts to connect) several disparate figures in his thought: rights as ungrounded and illimitable, rights as the strategic instrument-effect of political struggle, and rights as a performative mechanism of community."

"This article reviews the development of universal women's human rights since 1970. It begins by discussing how the international feminist movement influenced the development of women's legal human rights, and continues by reviewing three debates in the literature on women's rights. The first debate is whether human rights as originally formulated were actually men's rights; the second debate is about the relationship between culture and women's rights; and the third considers the effects of globalization on women's rights. The author defends a liberal approach to human rights via the principles of equality and autonomy for women, but also argues that the socialist approach is very important for women to achieve their economic human rights. Autonomy, moreover, is the means by which women can negotiate their own way between "Western" style personal liberation, and participation as they see fit in their own religions and cultures."

"For most indigenous communities, communal lands and natural resources have fundamental spiritual, social, cultural, economic and political significance that is integrally linked to both their identity and continued survival. Denial of the inherent and inalienable rights to their traditional land and natural resources is often at the root of human rights violations, giving rise to intra-state tensions and laying the foundation for emerging and ongoing conflicts. Full enjoyment of their land rights, including access to and control over the lands and their natural resources, would imbue indigenous peoples with the economic independence they need to preserve their distinct cultures and determine their futures. Immediate resolution of this issue is critical to ensuring that indigenous peoples are able to enjoy the rights to which they are entitled, and to enhance stability at the national level. It is suggested that one possible means is through the strategic reconceptualisation of self-determination. More specifically, the implementation of alternative manifestations of this right, particularly the effective realisation of the emerging right to autonomy, recognised in the Declaration on the Rights of Indigenous Peoples, would enable indigenous peoples to have effective, de facto control over all aspects of their political, social, cultural and economic survival."

This article addresses the most fundamental question in the philosophy of rights. If there are any moral rights, where do they come from and how do we acquire them? The difficulty of answering the question is compounded when asked in relation to universal rights and obligations where the international community in which they function is far less solidarist than at the domestic level. The suggestion is that while answers that presuppose something about the ontology of the person, such as an emphasis on basic needs, or inherent human dignity, are prevalent, they are a convenient fiction. It is contended that the rights recognition thesis, typically associated with British Idealism, is best exemplified with reference to common law theory, and customary international law, and provides a far more adequate account of what it means to have universal rights and obligations. It is suggested that customary international law functions in a similar way to how natural law used to function. The article concludes by emphasising the importance of customary international law in articulating the universal obligations of states and holding them to account for their actions. It addresses the question of what it means to have a universal right, and not what universal rights it is desirable to have.

Human rights originated as a political claim made by movements contesting state power. Recently, they have become the property of states: a juridical right that is for the state to give. I track this transformation through changes in responses to humanitarian crises. Humanitarian crises are seen to issue from two sorts of states-rogue states and failed states-both of whom violate, by commission or omission, the rights of their subjects. Given the failure of these states to protect the rights of their citizens, policymakers and rights advocates call for external intervention, or state-building. In understandings of state-building, human rights are for the state; or more correctly the state-being-built; to give, reversing the development of human rights from a set of political movements that protested unjust state power.

"This paper focuses on competing appropriations of international women's rights standards in the framework of the Moroccan Equity and Reconciliation Commission (ERC) and its follow-up projects. I argue that, even if the ERC's gender approach has been introduced as part of international models of transitional justice, it is geared toward earlier women's rights and human rights activism, as well as to established state practices of at least selectively supporting women's rights. Like political reform in general, the ERC and its gender approach are an outcome of internal, long-time dynamics of change. Within the ERC's politics of gender, there exists a tendency to depoliticize women's rights activism in the process of reconciliation by making women a target for welfare measures and "human development." Yet, at the same time, the officially recognized gender approach also allows for strategies to broaden the basis for women's rights activism by making women's experiences of violence during the "Years of Lead" (the period of fierce repression under the rule of Hassan II), an issue of concern in the framework of its new politics of memory. The implementation of the ERC's gender approach can be interpreted as an example of how women's rights activism may be able to push its agenda while adjusting to both transnational discourses and national politics."

An increasing number of local, national and international nongovernmental organisations (NGOs) are diligently working for the promotion and protection of human rights in the Muslim societies, and not without success. However, at times, some of these NGOs are perceived to be agents of 'Western colonisation' who attempt to undermine traditional structures and customs. Such attitudes are particularly prevalent in many Muslim countries such as Pakistan, which has suffered under colonial regimes for long periods of time. Thus it becomes important to frame human rights and peace-building efforts within the religio-cultural contexts of the community itself and to identify who can be effective agents of peace building and human rights. This article argues that human rights and peace building are inextricably linked and that any peace-building effort must incorporate mechanisms to enhance human rights.

"The aim of this article is to test a widespread belief among Brazilian legal scholars in the area of social rights, namely, the claim that courts are an alternative institutional voice for the poor, who are usually marginalized from the political process. According to this belief, social rights litigation would be a means (supposedly "a better means") of realizing rights such as the right to health care, since supposedly both the wealthy and the poor have equal access to the courts. To probe the consistency of this belief, we analyzed the socioeconomic profiles of plaintiffs in the city of Sao Paulo (Brazil) who were granted access to specific medications or medical treatments by judicial decisions. In this study, the justiciability of social rights has not proven to be a means of rendering certain public services more democratic and accessible."

This article examines the human rights claims made by the George W. Bush Administrations of their post 9/11 foreign and security policy. Two common scholastic explanations of this narrative are evaluated: (i) that human rights constitute, at least in part, independent foreign policy goals and; (ii) that the human rights claims of policymakers can be dismissed as hypocritical rhetoric. The article informs and progresses this debate by revisiting the works of the early twentieth century political culture theorists Gabriel Almond, Graham Wallas and Edward Bernays. The article details the consistent use of a human rights narrative by administration officials as a technique of political discipline. The article identifies five linguistic mechanisms through which this technique of discipline was made manifest in practice. The article thereby explains how a human rights narrative was employed as an instrument to inculcate, rather than describe, reality.

Can Kantian cosmopolitanism contribute to normative approaches to immigration? Kant developed the universal right to hospitality in the context of late eighteenth-century colonialism. He claimed that non-European countries had a sovereign right over their territory and the conditions of foreigners' visits. This sovereign prerogative that limited visitors' right to hospitality. The interconnected and complementary system of right he devised is influential today, but this article argues that maintaining the complementarity of the three realms involves reconsidering its application to contemporary immigration. It situates Kant's Perpetual Peace within the context of debates about conquest and colonialism and argues that Kant's strict conception of sovereignty is justified by his concern in maintaining a realm of sovereignty that is complementary with cosmopolitanism and his prioritization of mutual agreements in each of the realms, particularly in a context of international power asymmetry. In Kant's time, European powers appropriated cosmopolitan discourses to defend their right to visit other countries and it was necessary to strengthen non-Europeans' sovereign claims. The strength and hostility of the visitors made limited hospitality and strong sovereignty act in tandem to keep away conquerors, expanding cosmopolitanism. Today, individuals from poor countries migrate to wealthier ones where they are subject to a sovereign authority that excludes them. Sovereignty and cosmopolitanism no longer work complementarily, but rather strengthen powerful state actors vis-à-vis non-citizens subject to unilateral rule. Maintaining the pre-eminence of the right to freedom, the article suggests that only through the creation of 'cosmopolitan spaces' of politics can we reproduce today the complementarity that Kant envisioned.

"This article pieces together a complex genealogy of the multiple contexts that helped reshape women's international organizing and create a global women's human rights movement following the United Nations (UN) Decade for Women, 1975-85. It maps a multilayered history consisting of many different strands of women's activities around the globe that increasingly converged in the 1970s, although in unanticipated ways. Through its broad focus on women in distinct social, political, and intellectual arenas, it links the UN human rights system and its oversight committees and commissions with the first two UN Development Decades of the 1960s and 1970s. And it interconnects these global structures, discourses, and activities with old and new patterns of women's postwar organizing and with the emerging challenges to canons of knowledge and research methodologies from feminist theory and epistemology. Starting in the mid-1970s, four distinct yet overlapping endeavors converged: the work for international human rights, colonial and postcolonial expectations of economic development and well-being, women's rights and liberation movements, and women's studies in their global translations. This critical history, however, has all but been lost in the fraught contemporary debates about human rights as a vehicle for radical gender and social change."

Some Aboriginal and Torres Strait Islander individuals, organizations, and communities in Australia have embraced international human rights norms in their efforts to obtain redress for historical grievances and influence government policy and legal reform on contemporary social justice issues. This is unsurprising given the absence of formal national infrastructure for human rights recognition in Australia. While the use of international law and frameworks has brought notable gains, there have also been significant limitations on the relevance of international human rights law to Aboriginal and Torres Strait Islanders. These limitations are both a result of the local legal conditions in Australia as well as the form and nature of international law generally. A case study of the attempts during the 1990s and 2000s to apply the label of genocide to past government policies of removing and separating Aboriginal and Torres Strait Islander children from their families and communities illustrates that there are considerable challenges and risks associated with campaign strategies based on the local mobilization of international human rights law.

"Critics have commonly interpreted J. M. Coetzee's Elizabeth Costello as a defense of animal rights. However, this essay argues that it more accurately demonstrates the liabilities of enlisting the idiom of rights to advocate for animal welfare. It thus develops a phenomenology of embodiment indebted to Maurice Merleau-Ponty's thought as an analytic through which both to elucidate the status of the animal in Coetzee's text and to probe the limits of the liberal logic of rights. In doing so, it argues that liberal discourses of rights paradoxically occlude the ontological condition of embodiment. Although the text of Elizabeth Costello often appears closer to philosophy than literature, this essay further maintains that its narrative stages a plea for art's superior ability to manifest animal being-in particular its deeply embodied texture."

This article explores the Ethiopian Women Lawyers Association (EWLA) and its attempts to translate international women's rights norms into national law, examining the problematic geographies of women's networks from local to global levels and showing how Ethiopia remains on the periphery of global human rights networks. In their campaign for legal reform to protect women against violence, activists had to show how the proposed reforms were 'African', as invoking international human rights risked dismissal as evidence of 'Westernisation'. Activists face practical difficulties, including lack of funding and technology, limiting networking beyond the national level. The article shows how the state shapes local activists' ability to form global connections. Legislation banning civil society organisations such as EWLA from conducting work around rights threatens to marginalise Ethiopia further from global human rights networks and norms. Local connectivity to the global is only partial, mediated by the power relations in which activists and the state are embedded.

The aim of this paper is to examine and deconstruct the process of denying human rights protection to one group (children) on the basis that if this was done, another group (parents and teachers) could be construed as 'criminal.' In 2004 the Canadian Supreme Court ruled that children's constitutional rights to security, equality and to be free from cruel and unusual treatment were not infringed when assaults made on them were made by a parent or caregiver. The Supreme Court upheld s. 43 of the Criminal Code of Canada which provides parents, teachers and those acting in their place with a defence that justifies assaults on children. The Supreme Court majority acknowledged that s. 43 'permits conduct toward children that would be criminal in the case of adult victims' but the distinction, on the basis of age, is designed to protect children by not criminalizing their parents and teachers. Rather than denying rights to some to save others from the fate of being construed a criminal is it not incumbent upon us to uphold an inclusive understanding of human rights and question the system that would so readily drop a vulnerable group from its' protection over fear of labelling those with the upper hand as criminal?

Implicated within the relationship between memory and identities at the local, national and international levels is the question of whether there is 'right to memory': the human right to have the otherness of the past acknowledged through the creation of symbolic and cultural acts, utterances and expressions. This article outlines the rationale for a right to memory and why the debate is of importance to memory and cultural studies. It outlines some of the relationships understood between memory and identity within memory studies, suggesting that a right to memory requires an understanding of the complex dynamics of memory and identities not only within, but internationally across, borders. It extends the concept of political cosmopolitanism to use as an analytical framework to enable an analysis of current international protocols, showing how they formulate the discursive relationship between identity and memory in four ways that involve a number of contradictions and unresolved tensions.

"This article seeks to address the concern that the language of human rights has become increasingly problematic and susceptible to distortion from its intended meaning. This is in part due to three problems which are identified and interrogated, these being the implicit reduction of human rights discourse to Western individualism, universalism, and legalism. It proceeds to present a sociological defence of human rights discourse as the articulation of general desires in the building of a 'good society', and specifies eight such general desires which form the basis of this discourse."