Search Results

This chapter incorporates arguments and observations from earlier chapters into a case for a version of the equal shares approach of equal per capita national emissions allowances, contrasting this approach with the equal burdens model in which costs of mitigation and adaptation are equally assigned. A case is made against several versions of the equal burdens approach (including the Kyoto Protocol and the Bush administration's emissions intensity proposal) as being unjust, and a modified equal shares approach is defended against several anticipated objections. The case is made for instantiating the equal basic access to the earth's atmospheric services as a moral and legal environmental right, drawing upon Shue's distinction between basic and non-basic rights, and comparing this right with the claimed right to develop. Finally, it makes the case for procedural fairness in global climate policy development, urging recognition of this democratic norm for both principled and practical reasons.

This chapter examines the global minimum that people everywhere can claim as a matter of justice, and proposes that this should be understood as respect and protection for their basic human rights. When basic rights are threatened or violated, this triggers a responsibility on the part of outsiders to come to the aid of those whose rights are imperilled. The problem is to find a way of specifying the rights in question. There are two main desiderata. On the one hand, the grounding we give for basic human rights must explain their moral urgency, in particular why rights-violations can impose relatively demanding obligations on third parties who are not themselves responsible for the violations. On the other hand, the justification we present should have universal reach — it should appeal to reasons that everyone has reason to accept, regardless of their personal religious commitments or cultural values. It is argued that human rights can meet these desiderata, but only if the list of rights is kept fairly short and basic. More ambitious lists run the risk both of losing their moral urgency and of becoming unjustifiable except on partisan grounds.

What should political actors and state institutions be permitted, encouraged, required, or forbidden to do in the attempt to shape people’s national identities? This is the central question in the ethics of nation-building, and has been vastly understudied in recent normative political theories of nationalism. This chapter answers this question by discussing more than a dozen components of an individual’s national identity. It considers the many legitimate and illegitimate ways in which political actors and the state can shape or alter these components, and the content of the identity itself. It also considers the soundness and relevance of the seemly age-old distinction between so-called ethnic and civic national identities.

Employs historical analysis and philosophical reasoning to argue that sovereignty is inherently limited. The writings of classical theorists such as Grotius and Vattel indicate that aspirations to sovereignty and non-intervention have always been tempered by considerations above and beyond the state. Philosophically, it must be remembered that sovereignty is a right, and the concept of a right makes no sense in the absence of a corresponding duty. The duties that are constitutive of the rights of sovereignty constrain the behaviour of every sovereign belonging to international society. Two conclusions follow. First, there are limits on how states may treat their own citizens within their own territory. Second, other states face specific limits concerning the ill-treatment of residents within the territory of other states that they are free to ignore. In particular, genocide and massive violations of human rights are a matter of concern for all states in contemporary international society.

This chapter considers the importance of an intervener's effectiveness. It outlines and defends the ‘Moderate Instrumentalist Approach’. This holds that an intervener's effectiveness is the primary determinant of its legitimacy. More specifically, it distinguishes between three types of effectiveness—internal effectiveness, global external effectiveness, and local external effectiveness—and goes on to argue that effectiveness is a necessary condition of an intervener's legitimacy. The second part of this chapter fleshes out the Moderate Instrumentalist Approach in more detail. It considers what sort of timescale and comparison should be used to measure an agent's effectiveness (and, consequently, considers the importance of intervention being the last resort), and delineates the qualities that an intervener needs to possess in order to be effective. The end of the chapter considers two alternative approaches. The first, the ‘Non‐instrumentalist Approach’, holds that an intervener's effectiveness is of little moral concern. The second approach gives exclusive weight to an intervener's effectiveness—the ‘Extreme Instrumentalist Approach’.

Describes the process of adopting a new constitution in post‐communist Lithuania. The reasoning behind the quick adoption of a constitution was the urgent need to create links to Western constitutional traditions, to legitimize the country's independence from the USSR, and to distinguish Lithuania from other Soviet satellite states. The Constitution was intended to contribute to the perception of Lithuania as an independent state in the international community, in the hope of securing itself from possible re‐annexation to the Soviet Union. Furthermore, the chapter points out that despite its quick adoption, the constitution includes important safeguards for democracy, such as the balance of powers and basic rights.

This chapter examines the jurisprudential and doctrinal developments in support of the existence of a general principle of international law to respect and observe human rights in the main. It then advances the premise that the basic rights of the human person of which this principle consists, today, must include socio-economic rights. It argues that the status of a universal principle to respect and observe human rights has been elevated to a level where it legally binds all states. Since the adoption of the UN Charter and the subsequent strengthening of a common commitment to human rights, an appreciation that there are fundamental rules regarding respect of the human person, and thus the protection of human rights has entered into the body of customary international law.

Hohfeld's analysis of legal relations shows that any protection of freedom by means of liberties and claims is also the restriction of freedom by means of no-rights and duties. Every legal vindication of freedom is at the same time a restriction of freedom. Freedom cannot, thus, be maximised by means of any combination of legal relations. The very idea of maximum freedom is therefore self-defeating. A more nuanced analysis must distinguish between the value of certain freedoms and the qualities and burdens of restrictions. We need to look at the qualities of actions involved. Rawls' argument for the basic rights as derivative of the ‘two moral powers’ offers a solid basis for a will theory that respects the constraints of public reason. Equal liberty means a coherent scheme of rights that is equally secured to all.

This chapter discusses how to move from a general concern with the justification of coercion to particular substantive principles of justice. It argues that a social system is just only so long as it respects the right to freedom of those subject to it, namely their right to the social conditions necessary to lead autonomous lives. For this to be the case, the distribution of freedom engendered by the system has to be justifiable in the eyes of all those who are subject to it. Focusing on domestic societies in particular, the chapter concludes that a multiplicity of principles of economic justice might instantiate mutually justifiable distributions of freedom, not all of which are egalitarian in form. In other words, contrary to most contemporary liberal theorists’ arguments on the view defended in this chapter, economic equality is not a fundamental, non-negotiable demand of justice.

Alongside the increasingly difficult and complex task of proving cartel activity and involvement for legal purposes there developed a responsive practice on the part of companies, seeking to the challenge the exercise of powers, decision-making, and the imposition of sanctions on the part of the European Commission. Large and well-resourced companies mounted appeals, invoking the basic rights protection accorded to individuals under the criminal law process at the national level. This chapter explores the development of judicial review of Commission cartel decisions carried out by the European Court of Justice and later the Court of First Instance (now the General Court), and the judicial response to basic rights argumentation in this context, as companies challenged the legality of investigations, formal decision-making, and the imposition of fines. The discussion touches upon underlying constitutional issues, such as the separation of powers in the context of EU institutions, and the level of basic rights protection appropriate for corporate actors.

This brief chapter recapitulates some important points and suggests that the book’s overall argument should not be regarded as inimical to democratic values and practices. Although the book contends that the franchise is not a basic right, it also claims that a number of electoral exclusions that are normally considered to be acceptable under universal suffrage are actually hard to justify: those involving felons, minors, the mentally impaired, and noncitizen residents. Failing to examine our ordinary ideas about the right to vote comes at the price, not only of holding unjustified beliefs, but also of ignoring not-so-obvious instances of unjustified exclusions.

This introductory chapter begins with an overview of Henry Shue’s seminal work on political philosophy, Basic Rights. It characterizes the important central argument of the book and poses some preliminary questions about both its persuasiveness and its implications. These questions situate the research agenda launched by Basic Rights, which each of the subsequent chapters assess and further extend.

This chapter describes basic rights as a product of the bourgeois revolutions of the late eighteenth century and a part of the programme of the modern constitutional state that emerged from these revolutions. It differentiates basic rights from older forms of legal guarantees of freedom and argues that basic rights represent a specific form of legal guarantee of freedom which broke with their predecessors in important respects. Furthermore, the chapter delves into the relationship between the introduction of basic rights and the creation of bourgeois society, by considering six case studies: England, America, France, Sweden, Germany, and Poland. The chapter ends with an outlook to the role of basic rights beyond bourgeois society.

This chapter considers the controversy surrounding the nature of fundamental rights. Are they just negative rights of the individual vis-à-vis the state or are they also objective principles for the political and social order in general? The principle of proportionality that was developed by the Constitutional Court acts within the context of the familiar defensive protection of basic rights and decisively strengthens their function to ward off state infringements on freedom. By contrast, understanding basic rights in terms of objective principles opens up entirely new fields of application. They apply not only vertically but also horizontally and also oblige the state to actively protect individual freedom if endangered by private actors. The chapter shows how the objective component of basic rights, as a dynamic principle embedded in the legal order, opens the law to social change and compels the optimization of freedom in the face of changing situations.

Chapter 5 discusses the ontology and definitional issues involved with classifying rights into negative and positive paradigms. It analyzes the common definitions of “positive rights” in philosophy and law and proposes a more coherent definition based on UNESCO categories. It then critiques the ontological rejection of negative rights, observing that such rights are both possible and meaningful. It then analyzes Henry Shue’s argument that some rights are more “basic” than others, accepting his premise generally and refuting counterarguments, but proposing refinements to his definition of basic rights. Basic rights and the duty of fulfillment are also discussed, as is the purported unenforceability of positive rights.

This chapter analyses the stages of Shue’s argument in Basic Rights, which starts from the premise that human beings have moral rights, specifically claim rights in Hohfeld’s sense. This premise leaves open the content of our moral rights as well as their importance relative to one another and relative to other reasons for action. Noting considerable disagreement about these matters, Shue proposed a criterion for identifying the content, or (as he calls it) substance, of our most weighty, most important rights. Employing this criterion, he argues that four clusters of rights — security rights, subsistence rights, liberty rights, and political participation rights — satisfy this criterion. Shue concludes that these four rights clusters ‘are everyone’s minimum reasonable demands upon the rest of humanity’. Because all four clusters of rights impose both negative and positive duties, the common libertarian dismissal of subsistence rights fails.

This chapter recounts the troubled voyage of the Neptune Jade, a cargo ship caught in the midst of a dockworkers' dispute that began in Britain but attracted expressions of solidarity from dockworkers all over the world. It deploys the image of the endlessly voyaging Neptune Jade as a metaphor for the relentless search for solidarity in the midst of changing and highly unpredictable economic and political seas. Why should strikes aimed at supporting workers elsewhere not be deemed to involve basic rights? If a nation privileges political speech, why are expressions of views, voiced by withholding labour, not considered worthy of protection? The poignant absurdity to which this issue gives rise is illustrated by US laws protection of the right of unions to handbill consumers even though action is secondary, on the ground that it is protected by the First Amendment.