Search Results

The discussion of human dignity raises such complex issues, and the issues that current scholarship now considers central to its understanding is so daunting that we are in danger of not being able to see the forest for the trees. The Introduction introduces contributions from a multi-disciplinary group of historians, legal academics, judges, political scientists, theologians, and philosophers, arising from a Conference held in Rhodes House, Oxford in June 2012. It aims to provide a guide, a map, through the thicket of current dignity scholarship. It situates the subsequent chapters of the book within an overview of the terrain that currently constitutes debates about the use of dignity in these fields. It does not attempt to put forward the author’s own comprehensive account of dignity. Mostly based on the rich conversations that took place at the Conference, it seeks, rather, to probe the potential strengths and weaknesses of all of the principal positions identified, at least in some contexts taking on the role of a devil’s advocate.

Part I, ‘Theoretical Perspectives’, which is structured in two chapters (Chapters 1 and 2), develops a new general theory of human rights planning including four sub-theories. The first sub-theory, contextual theory, is presented in Chapter 1. Chapter 2 is dedicated to the other three sub-theories. The first two sections propose the substantive and procedural sub-theories of human rights planning. Whereas the substantive theory of human rights planning provides the knowledge base to inform the content of planning, procedural sub-theory offers procedural principles for the formation, implementation, and assessment of human rights planning. The last section of Chapter 2 builds up a new analytical sub-theory of human rights planning through positive critique of the three major theories of rights, namely the interest theory, the need-based approach, and the capability approach. This analytical theory performs an heuristic role for human rights planning.

This chapter addresses two crucial issues extraterritoriality presents—particularly when socioeconomic rights are taken into account. In order to identify extraterritorial human rights obligations we need to know why states are the primary duty bearers of international human rights law and which state owes international legal human rights obligations to which individuals. That is, we need to allocate the burdens that go along with human rights obligations and we need to justify this allocation. To do this, this chapter considers the Hohfeldian structure of rights, analyses accounts of justifying human rights, and argues that an interpretivist account of international human rights law as a normative context is the best way forward.

Human Rights are traditionally understood as a set of universal, inalienable, and individual rights. Nevertheless different histories, political interests, and cultural contexts have contributed to the development of the human rights culture. Among the different factors religion occupies a central place. This chapter discusses the compatibility of the theory of human rights with religions or with cultures. In the first case, the clash is with a norm that sets an absolute truth and/or the will of God as the source of norms. In the second case, cultures translate into an all-encompassing set of basic norms that define a holistic society, assigning their place to individual human rights. The focus of this compatibility will be assessed especially through the perspective of human rights understood as individual rights.

This chapter explores various foundational accounts of human rights theory. It considers centrally the accounts of Jeremy Waldron and Charles Beitz. It suggests that a natural rights account can capture the modern and institutional characters displayed by some human rights claims, while still conceiving of the rights at issue as suitably timeless and pre-institutional. Against Waldron, the chapter argues that his preferred account of the relationship between human dignity and human rights appears to be in fact consistent with “naturalistic” theories of human rights. Against Beitz, it argues that his principal arguments against naturalistic theories can be answered by a view that takes human rights to be a subset of the natural rights of persons.

Part I, ‘Theoretical Perspectives’, which is structured in two chapters (Chapters 1 and 2), develops a new general theory of human rights planning. This theory contains four sub-theories: 1. Contextual sub-theory 2. Substantive sub-theory 3. Procedural sub-theory 4. Analytical sub-theory. Chapter 1 is dedicated to the first sub-theory. The central thrust of this chapter is to proceed with proposing a new contextual sub-theory of human rights planning through which the key characteristics of the four sub-systems of society—polity, economy, culture, and community—and their impacts on the effectiveness of human rights planning are explored.

An account of what we know about the use by domestic courts of international human rights law is identified, based on the findings in this volume and earlier work on the use of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). From that, three aspects of the domestic functions of international human rights treaties are tentatively identified as particularly significant: international human rights law is only partly internationally-directed; domestic courts very seldom appear to be acting as ‘agents’ of international human rights law; and ‘human dignity’ (sometimes by itself, sometimes alongside ‘autonomy’ and ‘equality’) acts as an important meta-principle in the domestic use of international human rights law. The implications these functions have for normative theorising about human rights, in particular practice-dependent theories of human rights, is considered, and a theory of human rights law consistent with this practice is identified.

Theorists who assign functions to human rights often simply announce them as if they were obvious. Assigning a defining or typical function to a concept, artefact, or practice is not a straightforward empirical matter. It requires observation of uses and products, but also requires judgements of centrality and importance and uses selection criteria that can conflict. The first section of this chapter analyses the assignment of functions to artefacts, concepts, and practices and identifies some key methodological issues. The two following sections explore those methodological issues in the works of three philosophers who assign functions to human rights—James Griffin, John Rawls, and Charles Beitz. The conclusion suggests some ways in which the debate between proponents of “orthodox” and “political” conceptions of human rights can be improved.

This chapter addresses the normative foundations of the principle of proportionality, as used in human rights adjudication. The first part of the chapter mounts a critique against the orthodox conception of the doctrine, according to which the point of proportionality is to balance rights against other considerations (such as public interest, or the rights of others) with view to optimise the realisation of all the relevant values. The second part of the chapter offers an alternative account of the principle of proportionality. Proportionality has a moral dimension, which is to demarcate separate moral practices and the values that govern them. In the case of human rights, proportionality demarcates state action and picks out a dimension of the fundamental value of equal respect and concern. The chapter argues that this egalitarian conception of proportionality better fits and justifies central aspects of human rights law.

This book deals with human rights action planning from theoretical, doctrinal, empirical, and practical perspectives. It is structured into four parts and seven chapters. The first part is composed of two chapters that advance a novel general theory of human rights planning including four sub-theories. The second part, which contains two chapters, presents the results of a content analysis of all the nine core human rights conventions revealing the scope and nature of the obligation of the states to adopt a plan of action for implementing human rights. The third part, including one chapter, provides the empirical findings of a cross-case analysis of national human rights action plans of fifty-three countries exploring the major problems of these plans in different phases of planning and uncovering the underlying causes of these problems. The last part, which consists of two chapters, examines both national and supra-national human rights governance, setting out how these plans should be best developed, implemented, monitored, and how to maximize their effectiveness both at the national and international level.

The most important debate in contemporary human rights theory is between the universalist position that all people have identical rights and the cultural relativist claim that rights exist only in the context of particular communities. Cultural relativism attempts to deflect human rights–based criticisms by arguing that every community is entitled to respect for its community norms. Implicit in relativism is the assumption that human rights violations result simply from good faith cultural differences. But relativism, illogically, excuses even offenses that the state’s own norms do not permit. The true causes of most violations are corruption and lust for power, not cultural differences. The more heinous the violation, indeed, the more specious the relativist excuse. Cultural relativism cannot provide a basis for the rejection of human rights claims generally, when it excuses, at most, that minority of violations that are due to good faith difference of opinion.

The idea that states have discretion in complying with their human rights obligations, and the idea that human rights obligations should be compatible with a degree of diversity between states, are either trivial or misleading. In order to assess properly the doctrine of the Margin of Appreciation, one has to reconstruct it as a normative thesis about the conditions under which an international human rights court should place substantial weight on a decision by a domestic authority. Thus understood, however, the doctrine is problematic as it offends the values underlying human rights and the rule of international law. The chapter evaluates Andreas Follesdal’s particular defence of the Margin of Appreciation and argues that neither sovereignty nor democracy provides normative support for unqualified judicial deference. It argues further that the exceptions Follesdal wishes to place on deference to democratic institutions end up covering the whole of the scope of human rights obligations, making the idea of deference redundant.

This chapter points out that although the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is an important milestone, its adoption was also opposed by four important countries: Australia, Canada, New Zealand, and the United States. Looking through these countries’ positions and motives for opposing the UNDRIP, the author argues that commitment to a soft law instrument may involve a more complex decision-making process than conventional human rights theory suggests, at least for the states parties involved. The chapter shows that the four opposing states’ declarations directly map onto the potential developments foreseen for a soft law instrument, as each state voiced clear objections to all potential avenues through which the UNDRIP could follow the lead of the previous ‘hardening’ of provisions in soft law instruments. Such ‘hardening’ may undermine the perceived benefits of soft law instruments in terms of their flexibility and adaptability.