Posts Tagged ‘OUP’

The Sovereignty of Human Rights – Food for thought on New year’s eve

December 31, 2015

For those who want to spend New Year’s even with a more general reflection on “What are human rights?” I think that Patrick Macklem‘s “The Sovereignty of Human Rights” could be interesting reading”. Patrick Macklem is the William C. Graham Professor of Law at the University of Toronto and a Fellow of the Royal Society of Canada. The Sovereignty of Human Rights, was published by Oxford University Press in 2015.

On this anniversary of the adoption of the Universal Declaration of Human Rights, it is worth reflecting on the nature of human rights and what functions they perform in moral, political and legal discourse and practice.

For moral theorists, the dominant approach to the normative foundations of international human rights conceives of human rights as moral entitlements that all human beings possess by virtue of our common humanity. What constitutes a human right, according to this approach, isn’t determined by a positive legal instrument or institution. Human rights are prior to and independent of positive international human rights law. Just because a legal order declares something to be a human right doesn’t make it so. Conversely, the fact that a human right doesn’t receive international legal protection doesn’t mean that it isn’t a human right. The existence or non-existence of a human right rests on abstract features of what it means to be human and the obligations to which these features give rise. The mission of the field is to secure international legal protection of universal features of what it means to be a human being.

On moral accounts such as these, human rights protect essential characteristics or features that all of us share despite the innumerable historical, geographical, cultural, communal, and other contingencies that shape our lives and our relations with others in unique ways. They give rise to specifiable duties that we all owe each other in ethical recognition of what it means to be human. Rights and obligations can also arise from the bonds of history, community, religion, culture, or nation. But if such rights relate simply to contingent features of human existence, they don’t constitute human rights and don’t merit a place on the international legal register. And if we owe each other duties for reasons other than our common humanity – say, because of friendship, kinship, or citizenship – then these duties don’t correspond to human rights and shouldn’t be identified as such by international legal instruments.

In recent years, political theorists have generated a distinctive account of the nature and role of human rights. Unlike most moral approaches, which focus on universal features of our common humanity, political conceptions define the nature of human rights in terms of their discursive function in global politics. Human rights, according to political conceptions, don’t necessarily correlate to the requirements of moral theory. Global human rights practice, for several political theorists, is a social practice whose participants invoke or rely on human rights as reasons for certain kinds of actions in certain circumstances. They represent reasons that social, political, and legal actors rely on in international arenas to advocate interfering in the internal affairs of a state and to provide assistance to states to promote their protection. What this practice reveals is that human rights protect urgent individual interests against certain predictable dangers associated with the exercise of sovereign power. States have a primary obligation to protect urgent interests of individuals over whom they exercise sovereign power, but external actors, such as other states and international institutions, have secondary obligations to secure protection when a state fails to live up to its responsibility.

Legal theorists of human rights, in contrast, typically start from the premise that international law, not moral theory or political practice, determines their existence. An international human right to food, for example, exists because the International Covenant on Economic, Social and Cultural Rights enshrines such a right. Its international legal status as a human right derives from the fact that international law, according to the principle pacta sunt servanda, provides that a treaty in force between two or more sovereign states is binding upon the parties to it and must be performed by them in good faith. Similarly, the right to development is a human right in international law because the UN General Assembly has declared its legal existence. The international legal validity of a norm – what makes it part of international law – rests on a relatively straightforward exercise in legal positivism; a norm possesses international legal validity if its enactment, promulgation, or specification is in accordance with more general rules that international law lays down for the creation of specific legal rights and obligations.

Determining the legal validity of an international human right is a relatively simple legal task. But legal validity doesn’t determine the normative purpose of a human right, and legal conceptions of human rights that seek to explain their purpose in terms that go beyond positivistic accounts of their legal production threaten to reintroduce moral and political considerations into the picture, which undermines the possibility that human rights can be understood in distinctly legal terms.

For example, human rights in international law are legal outcomes of deep political contestation over the international legal validity of the exercise of certain forms of power. Such contestation doesn’t cease upon the enactment of an international instrument that enshrines a human right in international law. Contestation continues over its nature and scope in particular contexts as diverse as individual or collective disputes requiring international legal resolution, opinions offered by international legal actors on state compliance with treaty obligations, juridical determinations of the boundaries between domestic and international legal spheres, and negotiations among state actors that yield binding or non-binding articulations of international legal obligations. Once transformed from political claim into legal right, and as subsequently as a result of interpretive acts that elaborate their nature and purpose, human rights in turn empower new political projects based on the rules they establish to govern the distribution and exercise of power. How to separate the legal dimensions of human rights from their political origins and outcomes is a challenge to those who seek to ascribe legitimacy to human rights in distinctively legal terms.

In my work, I seek to meet this challenge by defining the nature and purpose of human rights in terms of their capacity to promote a just international legal order. On this account, the mission of international human rights law is to mitigate the adverse effects of how international law deploys sovereignty as a legal entitlement to structure global political and economic realities into an international legal order. It contrasts this legal conception of international human rights with dominant moral conceptions that treat human rights as protecting universal features of what it means to be a human being. This account also takes issue with dominant political conceptions of international human rights, which focus on the function or role that human rights play in global political discourse. It demonstrates that human rights traditionally thought to lie at the margins of international human rights law – minority rights, indigenous rights, the right of self-determination, social rights, labour rights, and the right to development – are central to the normative architecture of the field.

Andrew Clapham: master and futurologist of human rights

December 4, 2015

At the occasion of the publication of the second (revised and updated) edition of Human Rights: A Very Short Introduction by Andrew Clapham, Professor of Public International Law (Oxford University Press), the Graduate Institute interviewed him, on 2 December,  about the climate and long-term outlook for human rights. Andrew Clapham will be teaching a Spring 2016 course on The International Framework for the Protection of Human Rights as part of the Graduate Institute’s Master and PhD programmes in International Law. The book has an accompanying website which links to the main texts discussed.

How should we understand the concept of “human rights”?

Andrew Clapham: I have heard serious people in Geneva refer to human rights as ‘aspirations’ and I have heard it said that human rights are a ‘soft subject’. Both these misconceptions should be knocked on their heads. Human rights belong to all individuals and not to some future utopia. If those rights are violated, it represents a violation of the law, not the disruption of a dream. Human rights treaties and customary law are as ‘hard’ as trade or investment law. There are courts and prosecutors. Those convicted of genocide or torture go to prison. States found in violation of human right pay out millions in compensation. Of course there are violations of the law but that does not make the rights themselves imaginary.

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Where are the main failures in the protection of human rights in 2015, and what can be done about them?

Clearly there are egregious violations of human rights today. The right to life is being viciously violated in Syria; torture remains widespread in multiple countries; discrimination is everywhere; rights to food, education, health care and adequate housing are being denied around the world; but the human rights framework is used to frame the complaints about such issues and to design policies which prevent future violations. The failure to end the suffering in Syria sits with leaders who have the capacity to change things. The enforcement of human rights can play a role in prosecuting those who have committed crimes under human rights law and ensuring that everyone has the right to seek asylum.  The human rights framework can also be used to try to build a more stable and respectful society after the conflict

When is it justifiable for states to curtail or limit human rights?

Some rights, such as the right not to be tortured or the right not to be held in slavery can never be curtailed or limited; other rights related, say, to freedom of expression may have to be limited to protect the rights of others. Inciting racial violence is not protected by an absolute right to freedom of expression. Today, it is obvious that the right to privacy in one’s email correspondence is not absolute; it may have to be limited to protect others from threats to their lives through terrorist attacks. The discussion is over what procedures are necessary to limit such a right; should it be authorized by a judge, by the police, by a government minister?

Will we have a very different conception of human rights in 2065?

I doubt that any of the rights now included in the international texts will disappear, but their scope may be reduced or expanded. For example, there may be different expectations of privacy in 2065 – the right to be forgotten on the internet is only just emerging. In recent years we have seen new catalogues of rights for persons with disabilities and for indigenous peoples. I am confident that new rights for the elderly will be developed by 2065, and there will surely be developments along the lines of the right to a healthy environment. I suppose that eventually, some of the rights reasoning will be applied to sentient animals and the concept of animal rights will be more commonplace and less ‘aspirational’, but that is perhaps still quite a long way away.

Source: What will our “human rights” be in 2065?

Special event with Michel Forst on 2 December in London: Protection Regime HRDs

November 27, 2015

In an earlier post [https://thoolen.wordpress.com/2015/11/11/new-tactics-in-human-rights-follows-up-on-the-protection-regime-of-hrds/] I referred to the latest Special Issue in OUP’s International Journal of Human Rights on ‘Critical Perspectives on the Security and Protection of Human Rights Defenders’, in which scholars and practitioners critically appraise the construction and functioning of this protection regime.

In this context there is an evening event in London on 2 December 2015 in collaboration with the Human Rights Researchers Network at Senate House, University of London from 6.00-8.30pm. Special guest at this event is the UN Special Rapporteur on the Situation of Human Rights Defenders, Michel Forst.

Tickets are limited and available here: http://www.eventbrite.co.uk/e/critical-perspectives-on-the-security-and-protection-of-human-rights-defenders-tickets-19171391147

For the network see: http://www.sas.ac.uk/hrc/networks-study-groups/human-rights-researchers-network

New Tactics in Human Rights follows up on the protection regime of HRDs

November 11, 2015

In November 2013 OUP’s Journal of Human Rights Practice published a special issue on human rights defenders [https://thoolen.wordpress.com/2013/11/28/special-issue-on-human-rights-defenders-of-the-oup-journal-of-human-rights-practice/].

This is followed by another Special Issue in the International Journal of Human Rights on ‘Critical Perspectives on the Security and Protection of Human Rights Defenders’, in which scholars and practitioners critically appraise the construction and functioning of this protection regime, examining:

  1. the definition and use of the term ‘human rights defender’;
  2. the effectiveness of protection mechanisms; and,
  3. the complex relationship between repression, activism and risk.

    New Tactics is organizing a conversation ‘Evaluating the Human Rights Defender Protection Regime’ exploring these areas, asking: How do we define who is and who is not a ‘human rights defender’? What are the effects of these decisions? How effective are current protection mechanisms for defenders? How do defenders manage their security as they face risks? How should ‘protection’ work in practice?

    Join New Tactics and the authors of the papers in this Special Issue from 16 – 20 November, 2015.

    Copies of these papers are available for free here: http://explore.tandfonline.com/page/pgas/ijhr-volume19-issue7 but only until 31 December 2015!

    Join the Conversation beginning Monday

Two more side events on Human Rights Defenders on 10 and 12 March

March 5, 2014

In a post earlier in the day I mentioned that I would restrict myself to announcing Side Events to the UN Human Rights Council in Geneva that are specially focused on Human Rights Defenders, but that seems not be much of a restriction with two more interesting events scheduled for next week:

1.Human Rights Defenders and the Shrinking Space for Civil Society” on Monday 10 March 2014 from 14 to 15h00 in Room XX Palais des Nations. Speakers:

  • Navi Pillay UN High Commissioner for Human Rights
  • Halah Eldoseri – Saudi Arabia [researcher on women’s health services; blogs (Saudi women’s rights) to educate women about the country’s  international obligations towards women; writes and organises lectures and workshops in Saudi Arabia for activists and the public]
  • Maksym Butkevych – Ukraine [radio and TV journalist working with “Hromadske Radio” (“Public Radio”) in Kiev; Co-Founder of “No Borders” project of the NGO “Social Action Centre”, which works on anti-discrimination issues;  organised an independent radio station to directly cover the events in Ukraine; Co-Ordinator of the Independent Civic human rights violations Investigation Commission]
  • Mary Lawlor Director of Front Line Defenders [Chair]Frontline NEWlogos-1 condensed version - cropped

Co sponsors: Troicare, International Commission of Jurists, Permanent Mission of Ireland.

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2. “Global Trends for Human Rights Defenders” on Wednesday 12 March from 09h30 -12h00 in the office of International Service for Human Rights (ISHR), Rue de Varembé 1.  This Roundtable brings together human rights defenders, practitioners, academic scholars, intergovernmental officials, government representatives, and donors to discuss innovation and the way forward to improve understanding and protection of HRDs, specially to foster an enabling environments for human rights defenders. This discussion will draw upon:

  1. Recommendations made in the report of the UN Special Rapporteur on the Situation of Human Rights Defenders  to the Human Rights Council on 10 March 2014,
  2. Ideas shared in the Side Eventof the Human Rights Council on ‘Creating a Safe and Enabling Environment for the Protection of Human Rights Defenders’ on 11 March 2014 (see my post:https://thoolen.wordpress.com/2014/02/14/important-human-rights-council-side-event-on-11-march-to-be-followed-on-internet/)
  3. Issues in the Special Issue on the Protection of Human Rights Defenders in the Journal of Human Rights Practice (https://thoolen.wordpress.com/2013/11/28/special-issue-on-human-rights-defenders-of-the-oup-journal-of-human-rights-practice/).

To attend this event, please register by Friday March 7 at 12:00 noon by completing this on-line form:
https://docs.google.com/forms/d/19rJ44GM_VQybtestvtH8gH26vn9B2TLCBQ0VVftpobs/viewform

Special Issue on Human Rights Defenders of the OUP Journal of Human Rights Practice

November 28, 2013

A special issue on the Protection of Human Rights Defenders has appeared in the Journal of Human Rights Practice. This special issue contains insightful articles from human rights defenders, scholars and organizations across the globe focused on promoting and protecting human rights defenders. The Oxford Journal wants to bridge the gap between human rights practitioners and academicians. Exceptionally, this entire special issue of the Journal of Human Rights Practice is available free of charge for the next 3 months at http://jhrp.oxfordjournals.org/content/5/3.toc. You find there also the full text of my Review Essay on awards. Table of content: Read the rest of this entry »