Human Rights Law

Human rights treaties are often attached and complemented with Optional Protocols. The Optional protocol instruments are adopted after careful deliberation between different stakeholders including member states to human rights treaties. -/- The present document on Introduction to the International Covenant on Economic Social and Cultural Rights- Optional Protocol [OP-ICESCR] is an addition to the on-going work on the Human Rights Framework on ESC Rights. It covers basic information on the objectives of the OP and the key provisions dealing with the (...) redressal mechanisms and processes. Much emphasis is given to highlighting the expansion of the normative framework through the works of the Committee under the ICESCR. The document highlights a few of the important standards developed, interpreted and applied by the Committee in its dealing with member states. The document also mentions a few areas that need further study and analysis in order to understand the impact of the OP-ICESCR mechanisms within domestic jurisdictions, particularly of the member states. (shrink)

This paper argues that, while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. The right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. Thus understood, the two rights have distinct normative rationales. Key doctrinal (...) implications follow for the respective scope of the two rights, whether they may be claimed against non-state actors, and their divergent assessment of religious establishment. These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously. (shrink)

This article sketches ways in which business ethics should contribute to addressing the climate emergency. I consider some ways in which normative contributions to the debate on climate change and global warming have been defended, and how international thinking about environmental issues has moved from consequentialist to justice- and rights-based thinking. A recent case that came before the Hague District Court between a Dutch branch of Friends of the Earth, Milieudefensie, and Royal Dutch Shell (Milieudefensie v. Royal Dutch Shell), serves (...) as an illustration of how human rights have taken centre stage in climate change litigation – and how business ethics has entered the courtroom. I use this case also to show where the contributions of our field lie: to think about consequences and principles, to include various stakeholders in our evaluations, and to conceptualize the responsibilities of business and politics. (shrink)

International human rights law allows states to derogate some of their human rights obligations in times of public emergency. This essay attempts a normative assessment of the practice of derogation. We discuss,specifically, whether derogation is compatible with the logics and morality of rights. We notice that a major inconsistency between rights and derogation derives from the unilateral character of derogation: derogating parties are assigned a power-right to annul their own rights-based obligations. This contrasts with the idea,central to rights, that rights-based (...) obligations are owed to the right-holder. Only through consent of right-holders, we argue, can duties owed to them be modified or annulled. But whether the current practice of derogation is interpretable as a form of consent to rights infringement is highly disputable. (shrink)

Humiliation, as dealt with under different legal jurisdictions, poses a question about how these systems perceive and respond to humiliation. Are the laws' definitions, approach, and punishment appropriately determined? And if there are challenges to implementation, what are they?

In this paper I will use sex by deception as a case study for highlighting some of the most tricky concepts around sexuality and moral psychology, including rape, consensual sex, sexual rights, sexual autonomy, sexual individuality, and disrespectful sex. I begin with a discussion of morally wrong sex as rooted in the breach of five sexual liberty rights that are derived from our fundamental human liberty rights: sexual self-possession, sexual autonomy, sexual individuality, sexual dignity and sexual privacy. I then argue (...) (against the standard interpretation) that experimental findings in moral psychology show that the principle of respect for persons—a principle that grounds our human liberty rights—drives our intuitive moral judgments. In light of this discussion, I examine a puzzle about sex by deception—a puzzle which at first may seem to compel us to define 'rape' strictly in terms of force rather than sexual autonomy. I proceed by presenting an argument against the view that, as a rule, sex by deception undermines consent—a position held by prominent thinkers such as Philippe Patry (2001), Onora O’Neill (2003), Rubenfeld (2012), Tom Dougherty (2013a, 2013b), Joyce M. Short (2013), and Danielle Bromwich and Joseph Millum (2013, 2018). As we will see, sex following deception to increase your chances does not always constitute rape. Lying about your age, education, job, family background, marital status, or interest in a relationship, for example, does not make your sex partner incapable of consenting, which is to say that sex by deception need not be rape. I even go so far as to say that sex with another person that is facilitated by withholding information about having a venereal disease shouldn't be classified as rape. Although sex by deception doesn't compromise consent, it nonetheless violates the principle of respect for persons, not by vitiating sexual autonomy and compromising consent, but by failing to respect other sexual rights, such as our rights to sexual dignity, individuality, and privacy. (shrink)

Conditions for recognition of religion or belief (RoRB) continued to deteriorate around the world from June 2021 to June 2022. Authoritarian regimes bent on controlling religious activity maintained a foothold in Africa, Asia and parts of Central and South America. The liberties enshrined in the European Convention on Human Rights are at serious threat by the Russian Federation's invasion of Ukraine. While in Afghanistan, the Taliban's reclamation of power after twenty years of being kept at bay likely signals a new (...) generation of Afghan boys and girls who will not see their fundamental human rights upheld by the very institutions that are supposed to protect them.​ -/- The Religious Recognition Project considers the topic of how countries register religious groups and activities is one of the foremost issues in the modern world when it comes to respecting and protecting freedom of religion or belief (FoRB). The majority of countries and territories (58% or 137 out of 235 studied) either continue to make government registration mandatory for religious groups or provide no registration procedures at all. -/- An even greater majority of countries have established onerous registration procedures, the consequences of which, whether by intention or not, include the disenfranchisement of belief communities, the deregistration or denial of registered status for minority or "untraditional" religious groups, and the state's maintenance of control over the religious and philosophical lives of citizens. In essence, issues of registration remain a harbinger of worse violations of FoRB to come so if a focus is placed on dismantling these misused recognition and registration systems, it is possible that we could see a brighter future for FoRB conditions in countries worst effected by this issue. (shrink)

Recognition of Religion or Belief presents a global overview of the systems, laws and mechanisms states have established to recognise religions and beliefs and to legally register their affiliated organisations. Recognition of Religion or Belief is the first book of its kind to dedicate its contents to the recognition and registration issues, especially how they intersect with religious freedom conditions around the world. The book provides an analysis of the most up-to-date data on the recognition systems and registration procedures of (...) every country and territory on the planet using terminology derived from Cometan's doctoral research forming his upcoming thesis titled Religious Freedom & State Recognition of Belief to which Recognition of Religion or Belief acts as both a compliment and precursor. (shrink)

The Convention of the Rights of the Person in Outer Space, more informally known as the Space Rights Convention, is a human rights and animal rights document that outlines basic principles, rights and freedoms bestowed to different categories of species in outer space which including on extraterrestrial bodies (both planetary and sub-planetary), synthetic bodies (e.g. space stations), as well as on spacecraft (both commissioned and uncommissioned) travelling through space itself (which is often referred to in the Convention as the interspace (...) (i.e. the space between terrestrial bodies). The Convention mirrors much of the rights outlined in the 1948 Universal Declaration of Human Rights but its purpose is to tailor those fundamental human rights to the context of spacefaring activity and to civilisations beyond planet Earth's atmosphere. The Convention was composed by Cometan and is published by the Astronist Institution alone on 23rd May 2022 and is scheduled to be republished as one of the preppendices of the Astrodoxy as its final major draft, after which only amendments may be made to its contents. (shrink)

Today, major disciplines (including psychology, philosophy, science, etc.) are seeking to forge a deeper connection with spirituality/spiritual values. Emanating from these efforts are clues about the role of spirituality as an inspiration, a fertile source, and a benchmark for research, policy-making, and reforms. In the case of law/the law, scholars explore its relationship with spirituality in light of diverse topics including human rights, crime prevention, family relations, humanitarianism, development, education, security, conflict resolution, and freedom. A few of these works offer (...) fascinating insights, and a few emphasize the need for more detailed analysis. -/- This chapter seeks to highlight a few aspects of the relationship between law and spirituality. First, it highlights the importance being given to spirituality or spiritual values across disciplines, including law. Second, it aims to map the influence of spirituality in the working of laws and legal systems. This exercise will be undertaken in light of the expressions such as spiritual needs, spiritual rights, the spiritualization of law, etc. Third, the chapter raises a few questions of conceptual and practical importance. (shrink)

The jurisprudence under international human rights treaties has had a considerable impact across countries. Known for addressing complex agendas, the work of expert bodies under the treaties has been credited and relied upon for filling the gaps in the realization of several objectives, including the peace and security agenda. -/- In 1982, the Human Rights Committee (ICCPR), in a General Comment observed that “states have the supreme duty to prevent wars, acts of genocide and other acts of mass violence ... (...) Every effort … to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life.” Over the years, all treaty bodies have contributed in this direction, endorsing peace and security so as “to protect people against direct and structural violence … as systemic problems and not merely as isolated incidents …”. A closer look at the jurisprudence on peace and security, emanating from treaty monitoring mechanisms including state periodic reports, interpretive statements, the individual communications procedure, and others, reveals its distinctive nature. (shrink)

There are many reasons to suggest that human rights have a spiritual flavor. Grounded in the understanding that individuals and communities have spiritual interests, the idea of human rights has been called upon time and again to protect and provide for them. This development has raised questions about what spiritual interests are and what role human rights can play in this regard. On a cursory glance, linking human rights to spirituality benefits three right-holders: individuals, communities, and humanity as a whole. (...) Human rights contribute to the realization of a person’s human dignity through the satisfaction of his or her developmental, physical, psychological, and spiritual needs (UNFPA: 2005). And the spiritual interests of communities reflect in the specific rights—namely cultural rights, land rights, environmental rights, the right to peace, etc. In addition, commitments to the spiritual rights of human beings and the planet could be considered essential for the survival and evolution of humanity. (Universal Declaration of Spiritual Rights). Noteworthy in human rights cases is the use of spirituality-based concepts—namely spiritual development, spiritual needs, spiritual rights, spiritual reparations, etc.—as benchmarks for research, policy interventions, and reforms. (shrink)

In recent years, there has been increased academic interest in the human right to freedom of thought (RFoT). Scholars from various disciplines are currently debating the content and scope of this right. In his annual thematic report of 2021, the United Nations Special Rapporteur on Freedom of Religion or Belief paid explicit and comprehensive attention to the RFoT, encouraging further clarification of the content and scope of the right. This paper aims to contribute to this end, setting the stage for (...) further research, by offering a multidisciplinary analysis of the RFoT’s scope, relation to other rights, practical significance and moral foundations. (shrink)

The study aims at making explicit the three spheres or planes, essential from the point of view of semiotics, on which the discourse regarding dignity takes place, and at clarifying the relations between these planes. The analysis uses the conception of Kazimierz Ajdukiewicz. There are three principal areas in which the discourse on dignity is conducted – the plane of linguistic expressions on which the name “dignity” is used; the plane of meanings on which the notion of dignity is placed; (...) and the plane of objects on which there is dignity itself. There is a relationship of meaning between the different concepts of dignity and the expression “dignity”, a relationship of signification between expression “dignity” and dignity as its referent, and a relationship of apprehension between the concepts of dignity and their referents. (shrink)

This Dictionary of Freedom of Religion or Belief is published by the Astronist Institution through its imprint press Astral Publishing and will stand as the third entry in the Institutional Reference Works series. This Dictionary of Freedom of Religion or Belief provides a vast selection of terms covering all areas of religious liberty advocacy, the history of freedom of religion, human rights violations effecting religious freedom, current affairs and the mechanisms that the United Nations and other key organisations have put (...) in place to ensure religious and belief freedoms are protected for every human being around the world. Compiled by Cometan, this dictionary follows on from the Concise Dictionary of Astronism (First Edition; 2020) and The Institutional Dictionary of Astronism (First Edition; 2021). (shrink)

Any appeal to a right raises the question of a corresponding duty. If one bears a right, then who bears the duty to respect, protect, and enforce that right? In this essay, I contend that human rights claims need not be oriented to or reliant on the state. I start from and conclude with lessons from the 2016 protests at Standing Rock. Standing Rock, I argue, exemplifies critical theory that organizes communities through the language of human rights.

The human mind has been a subject matter of study in psychology, law, science, philosophy and other disciplines. By definition, its potential is power, abilities and capacities including perception, knowledge, sensation, memory, belief, imagination, emotion, mood, appetite, intention, and action (Pardo, Patterson). In terms of role, it creates and shapes societal morality, culture, peace and democracy. Today, a rapidly advancing science–technology–artificial intelligence (AI) landscape is able to reach into the inner realms of the human mind. Technology, particularly neurotechnology enables access (...) to the human mind for research, treatment and other purposes. This enabling feature is now a growing concern. In the field of human rights, this human-science–technology interface is leading to articulation of new human rights to safeguard against modern threats. The wider usage of expressions like neurolaw and mental autonomy reflects on the emerging field of standards to protect the human mind from interference, manipulation and control. Growing literature on the subject sheds light on the human-rights-based approach to the challenge. (shrink)

In the field of human rights, expressions like justice and legal reform are closely linked to the process of harmonization of domestic and international human rights standards. Harmonization of human rights standards can be described as a process wherein international human rights are incorporated or given full effect to at the domestic level. [i] To harmonize the two set of standards i.e. domestic and international is viewed as both a commitment and obligation of states under international law. [ii] In terms (...) of state practice, the process of harmonization may entail a set of actions including adoption of laws and creation of mechanisms for enforcement and redressal of violations. -/- At the international level, the harmonization agenda is actively promoted at forums including the Universal Periodic Review (UPR) or during consultations between states and human rights treaty bodies, etc. Questions on whether states are in compliance with their international human rights commitments under treaties and other resolutions are to a large extent determined based on the extent of harmonization. Other pertinent questions being whether existing domestic laws are compatible with international human rights standards? What conditions obstruct and facilitate harmonization of human rights standards? Are there any parameters to measure harmonization? -/- While harmonization is widely promoted, its study and assessment is complex. (shrink)

A psychology-informed view of human rights has been taken into account by many scholars while examining the short-term and long-term effects of human rights violations on individuals and communities. In Trauma and Human Rights: Integrating Approaches to Address Human Suffering, for instance, the authors discuss the trauma-informed approach in the context of human rights violations, namely domestic violence, racial and other forms of discrimination, etc. In the paper on Trauma among children and legal implications, the authors advance a trauma-informed approach (...) to human rights. The approach considers the experiences of trauma associated with physical abuse, sexual abuse, neglect, psychological/emotional abuse, community violence, natural disasters, serious accidents, parental death/grief, medical procedures and conditions, and terrorism. In the case of violations including rape and torture, the paper Torture by means of Rape concerns the psychological suffering of victims of rape, abuse, and torture in light of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As for the jurisprudence of international human rights bodies, the advancement of a psychology-informed view of human rights is noticeable. Take the example of the Report of the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment on Biopsychosocial factors conducive to torture and ill-treatment. The Report explores the root causes of the current worldwide complacency concerning torture and ill-treatment and recommends the urgent and proactive incorporation of science-based conclusions into ongoing, policy-based global governance reform processes. Further, the report provides that the root cause of the systemic governance failure is attributed to the generic biopsychosocial factors that have shaped human decision-making throughout history, irrespective of national, cultural, religious, or other distinctive influences. Since the two fields are creating a landscape of new concepts and perspectives, one may study this interface broadly under three headings; (a) Psychology in Human Rights. (b) Rights-Based Approach to Psychological Science and Research. (c) Psychology and Human Rights in Law and Policy. (shrink)

Domestic courts have attained prominent status in the international human rights system. While adjudicating individual claims and interpreting legal provisions, domestic courts have conveyed meanings that are integral to the working of the international human rights system. The dynamism of domestic courts is an undeniable quality, through which they incorporate diverse perspectives based on principles linked to individual sovereignty, justice, peace, etc. In this paper, the role of the Indian Supreme Court has been discussed in light of three landmark decisions (...) where the court applies international and domestic human rights standards to substantiate its interpretations. In light of the cases of Navtej Singh v. Union of India, Joseph Shine v. Union of India, and KS Puttaswamy v. Union of India, the paper examines the approach of the court under five broad headings: (a) the domestic context, (b) autonomy and determination, (c) constitutional parameters and validity of laws (d) vulnerability, and (e) other courts and other contexts. On the role of domestic courts in general, the paper outlines a list of the contributions that domestic courts are making in the field of human rights.]. (shrink)

The obligations set by the individual right to health are likely to conflict, at least if states are its addressee, with the obligations set by the collective rights to self‐determination that certain sub‐state communities have (or should be recognized). In this paper, I argue that conceiving of the right to health and of collective rights to self‐determination as both aiming at the promotion of individual agency might help us alleviate this particular problem. To do so, I first explain how we (...) can conceive of the right to health and of collective rights to self‐determination as protecting crucial aspects of individuals' agency. It is because both health and the capacity to participate in particular collectives are important ways in which our agency is enabled. I then argue that this conception of the purpose of those rights offers a principle to guide our practical deliberation when the protection of health and the protection of collective self‐determination seem to conflict. Finally, I specify how I think this principle might guide us when it comes to understanding the obligations that the right to health sets for the state towards members of selfdetermining sub‐state communities, both in terms of the provision of healthcare goods and services and the provision of the underlying determinants of health. (shrink)

Rigorous evaluations of the effects of vertical public health enterprises on the health systems of low-income countries usefully identify the public health and ethical costs of those initiatives. They reveal that such narrowly focused public health ventures undermine the efforts of those countries to establish and maintain adequately resourced and well-developed national health systems, including comprehensive primary care programs. This paper argues that the scope of assessments of vertical public health ventures should be broadened to include gender as an additional (...) axis of analysis. When members of socio-economically marginalized populations are sick with conditions that are not covered by fragmented and inadequate public health programs or disease-specific vertical public health schemes, their untreated illnesses add to the gendered familial caregiving responsibilities of the female members of their households. Those women and girls have to perform their ‘normal’ familial care work, work outside the home for pay, and take care of the unwell family members for whom the household cannot afford treatment. Given that women and girls from low-income households already shoulder a disproportionate amount of care work for their families, their health and life prospects are further affected by the amplification of their caregiving responsibilities. This paper argues that analyses of the impact of vertical public health initiatives should also track this gendered consequence of those enterprises because it is a crucial public health and ethical matter. (shrink)

STRESZCZENIE Opracowanie zmierza do udzielenia odpowiedzi na pytanie, czym – z punktu widzenia struktury procesu wykładni i struktury wchodzących w grę wartości konstytucyjnych – różni się ograniczanie wolności i praw w ramach stosowania „zwykłych środków konstytucyjnych”, od ograniczania wolności i praw dopuszczalnego w stanach nadzwyczajnych. Podjęta zostaje problematyka dotyczącą kwestii materialnych, a poza zakresem rozważanych zagadnień pozostają kwestie dotyczące formalnych warunków dopuszczalności ograniczeń, jak publiczne ogłoszenie zagrożenia czy możliwość wprowadzania ograniczeń w aktach podustawowych. Stawiane tezy są polemiczne wobec poglądów, że (...) zawieszenie wolności lub praw jest skrajnym typem ograniczania i następuje wtedy, gdy wolności czy prawa „już nie ma”, lub że zawieszenie zakłada ograniczenie istoty wolności lub prawa. Okazuje się, że można sensownie mówić o zawieszaniu wolności lub praw także wówczas, gdy są one ograniczane w niewielkim tylko stopniu. Ponadto, możliwe jest zawieszanie, które nie prowadzi do ograniczenia istoty wolności lub prawa. Argumentuje się, że istotą zawieszania wolności lub praw w stanach nadzwyczajnych jest zakwestionowanie podstawowego ich przymiotu, jakim jest – uznawana w prawie międzynarodowym – nienaruszalność „całych” poszczególnych praw człowieka, która jest czymś innym od nienaruszalności ich istoty. Przy okazji prowadzona jest refleksja teoretycznoprawna nad zagadnieniem zawieszania wolności lub praw. Zawieszenie okazuje się czymś istotnie różnym od czasowej utraty mocy obowiązującej przepisów dotyczących wolności czy praw. Ich ciągłe obowiązywanie znajduje wyraz, na przykład, w zasadzie proporcjonalności mającej zastosowanie do zawieszanych wolności lub praw. -/- Extraordinary Measures and Restrictions of Constitutional Freedoms and Rights ABSTRACT The study aims to answer the question on the difference between limitation of freedoms and rights in ordinary situations and their suspension (derogation) when extraordinary measures are introduced. This question is considered from the point of view of the structure of the interpretation process and the structure of the constitutional values. Consideration is given to issues relating to material aspects. However, issues relating to formal conditions for the admissibility of restrictions, such as public announcement of a threat or the possibility of introducing restrictions in sub-statutory acts, are not examined. The theses put forward are critical of the view that suspension of freedoms or rights is an extreme type of limitation and a freedom or a right "is no longer there", and of the view that suspension presupposes violation of the essence of freedom or right. It can be argued that it makes sense to talk about the suspension of freedoms or rights also when they are only slightly restricted. Moreover, it is possible to suspend a freedom or a right without violating their essence. It is argued that suspension of freedoms or rights leads to questioning of their basic characteristic that is their inviolability as recognized in international law. However, this inviolability of freedoms or rights is something different from the inviolability of their essence. In terms of the theory of law, the suspension of freedoms or rights turns out to be something significantly different from the temporary loss of the binding force of the respective provisions. Their continued validity is reflected, for example, in the application of the principle of proportionality to the suspended freedoms or rights. (shrink)

The much-discussed “claimability objection” holds that it is unjustified to believe that all individuals have a human right to subsistence because the bearers of the correlative duties are not sufficiently determined. This argument is based on the so-called “claimability-condition”: S has a right to P if and only if the duty-bearer is sufficiently determined. Practice-based theorists defend the human right to subsistence by arguing that if we take the existing human rights practice seriously, there is no indeterminacy about the allocation (...) of duties. In this paper, I challenge this defense of the human right to subsistence with a dilemma. If the claimability condition is true, the practice-based defense fails to undermine the claimability objection because the duty-bearer is determined in some, but not all, cases. If practice-based theorists reject the claimability condition, they generate an account of human rights that is problematic from the practical perspective because it may contain duties that are unable to guide action. (shrink)

It is one thing to consider what human rights have been and another to inquire into what they could be. In this essay, I present a history of human rights vis-à-vis decolonization. I follow the scholarship of Samuel Moyn to suggest that human rights presented a “moral alternative” to political utopias. The question remains how to politicize the moral energy around human rights today. I argue that defending what Édouard Glissant calls a “right to opacity” could politicize the ethical energy (...) around human rights today. Glissant’s right to opacity outlines a blueprint for the praxis of human rights to shift from a “functional model” to a “critical model,” to use Enrique Dussel’s distinction. My ultimate aim is to show how social movements around human rights and decolonization could converge today. (shrink)

At this juncture, the relevance of the human right to science is undeniable. The right, for a long time, has been a subject matter of deliberation under Article 15 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). Most of these deliberations emphasised the need for a concise meaning and scope of the right to science. In the year 2020, the Committee on Economic, Social and Cultural Rights (CESCR) under the ICESCR made two interventions with the objective (...) of defining, advancing and mainstreaming the right to science. The two interventions include General Comment No. 25 on Science and Economic, Social and Cultural Rights, and the Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic, Social and Cultural Rights. This paper concerns the above mentioned statements of the CESCR, in particular, the interpretations and standards being advanced by the Committee. (shrink)

„Political Correctness“, „Identitätspolitik“ und „Cancel Culture“ werden heutzutage überwiegend als Waffen von Konservativen eingesetzt, um ihre Privilegien gegen emanzipative Neuregelungen zu verteidigen. Solche Neuregelungen als Einschränkung der Kunst- und Meinungsfreiheit zu kritisieren ist deshalb meist falsch. Tatsächlich tragen „Political Correctness“, „Identitätspolitik“ und „Cancel Culture“ zur inklusiveren Verwirklichung der Demokratie bei. Im Artikel zeige ich, dass es darauf ankommt, auf welcher Ebene politische Regulierungen der Kunst stattfinden: nicht-staatlich im allgemeinen Kunstbetrieb, para-staatlich im öffentlich-rechtlichen Rundfunk, oder staatlich. Nur wenn der Staat mit (...) zentralisierter rechtlicher, ökonomischer und symbolischer Macht in laufende Debatten eingreift, kann man von problematischer Cancel Culture sprechen - das ist fast nie der Fall. (shrink)

The 1948 Declaration of Human Rights demanded a collaboration among exponents from around the world. Embodying many different cultural perspectives, it was driven by a like-minded belief in the importance of finding common principles that would be essential for the very survival of civilization. Although an arduous and extensive process, the result was a much sought-after and collective endeavor that would be referenced for decades to come. Motivated by the seventieth anniversary of the 1948 Universal Declaration of Human Rights and (...) enriched by the contributions of eminent scholars, this volume aims to be a reflection on human rights and their universality. The underlying question is whether or not, after seventy years, this document can be considered universal, or better yet, how to define the concept of “universality.” We live in an age in which this notion seems to be guided not so much by the values that the subject intrinsically perceives as good, but rather by the demands of the subject. Universality is thus no longer deduced by something that is objectively given, within the shared praxis. Conversely, what seems to have to be universal is what we want to be valid for everyone. This volume will be of interest to those currently engaged in research or studying in a variety of fields including Philosophy, Politics and Law. (shrink)

The experience of Costa Rica highlights the potential for conflicts between the right to health and fair priority setting. For example, one study found that most favorable rulings by the Costa Rican constitutional court concerning claims for medications under the right to health were either for experimental treatments or for medicines that should have low priority based on health gain per unit of expenditure and severity of disease. In order to better align rulings with priority setting criteria, in 2014, the (...) court initiated a reform in its assessment of claims for medicine. This paper assesses this reform’s impact on the fairness of resource allocation. It finds three effects. First, a reduction in successful claims for experimental medication, which is beneficial. Second, an increase in the success rate of medication lawsuits, which is detrimental because most claims are for extremely cost-ineffective medications. Third, a decline in the number of claims for medicine, which is beneficial because it forestalls such low-priority spending. This paper estimates that, taking all three effects into account, the reform has had a modest net positive impact on overall resource allocation. However, it also argues that there is a need for further reforms to lower the number of claims to low-priority medicines that are granted. (shrink)

The status of economic liberties remains a serious lacuna in the theory and practice of human rights. Should a minimally just society protect the freedoms to sell, save, profit and invest? Is being prohibited to run a business a human rights violation? While these liberties enjoy virtually no support from the existing philosophical theories of human rights and little protection by the international human rights law, they are of tremendous importance in the lives of individuals, and particularly the poor. Like (...) most individual liberties, economic liberties increase our ability to lead our own life. When we enjoy them, we can choose the occupational paths that best fit us and, in so doing, define who they are in relation to others. Furthermore, in the absence of good jobs, economic liberties allow us to create an alternative path to subsistence. This is critical for the millions of working poor in developing countries who earn their livelihoods by engaging in independent economic activities. Insecure economic liberties leave them vulnerable to harassment, bribery and other forms of abuse from middlemen and public officials. This book opens a debate about the moral and legal status of economic liberties as human rights. It brings together political and legal theorists working in the domain of human rights and global justice, as well as people engaged in the practice of human rights, to engage in both foundational and applied issues concerning these questions. conomic liberties leave them vulnerable to harassment, bribery and other forms of abuse from middlemen and public officials. This book opens a debate about the moral and legal status of economic liberties as human rights. It brings together political and legal theorists working in the domain of human rights and global justice, as well as people engaged in the practice of human rights, to engage in both foundational and applied issues concerning these questions. (shrink)

Does a political conception of human rights dictate a particular view of corporate human rights obligations? The U.N. “Protect, Respect, and Remedy” Framework and Guiding Principles on Business and Human Rights hold that corporations have only a responsibility to respect human rights. Some critics have argued that corporations should be responsible for a wider range of human rights obligations, beyond merely an obligation to respect such rights. Furthermore, it has been argued that the Framework relied on a political conception of (...) human rights, and this is what led to limiting corporate obligations to mere respect for human rights. In this paper, I explore and critically assess this general claim about political conceptions of human rights. This involves distinguishing different types of political conceptions of human rights, as well as specifying what makes a theory of human rights a “political conception.” In light of this clarificatory discussion, I argue that the general thesis is false; the mere fact that a theory offers a political conception of human rights does not necessarily entail any certain range of corporate human rights obligations. Finally, I identify some of the other aspects of a theory of human rights that do affect the range of corporate obligations it will prescribe. (shrink)

In everything from philosophical ethics to legal argument to public activism, it has become commonplace to appeal to the idea of human dignity. In such contexts, the concept of dignity typically signifies something like the fundamental moral status belonging to all humans. Remarkably, however, it is only in the last century that this meaning of the term has become standardized. Before this, dignity was instead a concept associated with social status. Unfortunately, this transformation remains something of a mystery in existing (...) scholarship. Exactly when and why did "dignity" change its meaning? And before this change, was it truly the case that we lacked a conception of human worth akin to the one that "dignity" now represents? In this volume, leading scholars across a range of disciplines attempt to answer such questions by clarifying the presently murky history of "dignity," from classical Greek thought through the Middle Ages and Enlightenment to the present day. (shrink)

Too often, the right to healthcare has been considered an illusory right that is not even a legal right, but merely an aspirational norm that cannot be adjudicated before the court. In modern human rights law, considering individual and social rights as interdependent and indivisible, such an approach is untenable. Both legal doctrine and recent case law from domestic and international courts have elaborated and confirmed the specific obligations under the right to healthcare, countering the general complaint of “shrouded vagueness”. (...) Landmark cases have even provided a functional remedy to enforce individual healthcare claims successfully. This paper will examine the revised legal status and content of such a right to healthcare from a European perspective. (shrink)

For many years now Allen Buchanan has been one of the most important theorists working on the philosophy of human rights, producing a large number of papers and two books significantly devoted to the topic. In the work under consideration in this symposium, Buchanan breaks new ground by examining what he claims to be the “heart” of international human rights practice – the international legal human rights (“ILHR”) system, subjecting it to moral and philosophical analysis and criticism. Buchanan's book was (...) the subject of an author meets critics session sponsored by the APA Committee on Law and Philosophy at the 2015 Pacific APA Meeting. The following paper introduces the resulting special issue of the journal, _Law and Philosophy_, summarizing Buchanan's important contribution and criticisms by William Talbot, Brooke Ackerley, Erin Kelly, and Mathias Risse, as well as Buchanan's replies. (shrink)

The claim that human dignity is universal is challenged by the particular experience of the horrible things people do to others. If dignity is just a ‘vacuous concept’ then the notion of universal human rights and the claim of cosmopolitism that all human beings for a single moral community are also called into question. A close reading of the Universal Declaration of Human Rights and an analysis the historical development of the text reveals a complex conception of human dignity expressed (...) by the Component Dimensions of Human Dignity model. The model conceives of human dignity in terms of four Component Dimensions – existential, behavioral, cognitive-affective and social- each consisting of a Complementary Duality comprising two facets held in tension along an axis of the Already and the Not Yet. Consequently, human dignity can be understood both as Already a universal truth, and as Not Yet realized in every particular life. (shrink)

The article explores the regulatory aspect of the right to freedom of expression. It focuses on human rights case law to see how the guarantee of this right considers subjects, who are required to be free in specific ways in order to exercise their freedoms aptly.

In The Heart of Human Rights, Allen Buchanan emphasizes the distinction between moral human rights (MHRs) on the one hand and international legal human rights (ILHRs) on the other. MHRs are the moral rights held universally by all humans simply in virtue of being human. ILHRs are the legal rights of international practice, which are articulated in the United Nations’ International Bill of Rights and related legal documents. One of the most controversial aspects of Buchanan’s account of human rights is (...) its denial of any significant role for MHRs in the justification of the content of ILHRs. This is at odds with the orthodoxy according to which there is a close connection between MHRs and ILHRs. In particular, Buchanan challenges what he calls the ‘Mirroring View’ according to which each ILHR constitutes the reflection of some corresponding MHR. Buchanan is right to subject the Mirroring View to scrutiny, and although I agree that it should be rejected, I argue in this paper that his alternative account of the justification of ILHRs is also problematic. In particular, I argue that rejecting the Mirroring View does not entail the irrelevance of MHRs to the justification of the content of ILHRs, and I propose an alternative account that avoids the shortcomings of the Mirroring View while nevertheless placing MHRs at the core of the justification of ILHRs. (shrink)

What makes something a human right? What is the relationship between the moral foundations of human rights and human rights law? What are the difficulties of appealing to human rights? This book offers the first comprehensive survey of current thinking on the philosophical foundations of human rights. Divided into four parts, this book focuses firstly on the moral grounds of human rights, for example in our dignity, agency, interests or needs. Secondly, it looks at the implications that different moral perspectives (...) on human rights bear for human rights law and politics. Thirdly, it discusses specific and topical human rights including freedom of expression and religion, security, health and more controversial rights such as a human right to subsistence. The final part discusses nuanced critical and reformative views on human rights from feminist, Kantian and relativist perspectives among others. The essays represent new and canonical research by leading scholars in the field. Each section is structured as a set of essays and replies, offering a comprehensive analysis of different positions within the debate in question. The introduction from the editors will guide researchers and students navigating the diversity of views on the philosophical foundations of human rights. (shrink)

The question of how to arrive at a consensus on human rights norm in a diverse, pluralistic, and interconnected global environment is critical. This volume is a contribution to an intercultural understanding of human rights in the context of India and its relationship to the West. The legitimacy of the global legal, economic, and political order is increasingly premised on the discourse of international human rights. Yet the United Nations’ Declaration of Human Rights developed with little or no consultation from (...) non-Western nations such as India. In response, there has developed an extensive literature and cross-cultural analysis of human rights in the areas of African, East-Asian, and Islamic studies, yet there is a comparative dearth of conceptual research relating to India. As problematically, there is an lacuna in the previous literature; it simply stops short at analyzing how Western understandings of human rights may be supported from within various non-Western cultural self-understandings; yet, surely, there is more to this issue. The chapters in this collection pioneer a distinct approach that takes such deliberation to a further level by examining what it is that the West itself may have to learn from various Indian articulations of human rights as well. (shrink)

Problem of Axiological Legitimization of the Universal System of the Protection of Human Rights Summary In this paper it is argued that legitimization of the universal system of the protection of human rights depends primary not from the content of values recognised as fundamental but rather from metaaxiological solutions related to the way of existence and to the possibility of cognition of these values. Legitimisation is based on the recognition of an objective nature and of cognoscibility of basic values. Realisation (...) of the primary aim of this paper is linked to the problem of different meanings of the notion of universality, used in the context of the universal system of the protection of human rights. First, descriptive and normative meanings have to be distinguished. In the case of normative sense, there are moral and legal meanings of “universality”. An axiological justification of the universality of human rights in the legal sense leads to the legitimisation of the universal system. It is shown that modifications of – broadly accepted in the Polish theory of law – definitions of an axiological justification of legal norms are needed. These definitions base such a justification on the valuations made by particular groups of subjects. It is argued that it is much more convenient to refer to valuations understood as meanings of sentences of certain kind. -/- Streszczenie W artykule zmierza się do uzasadnienia tezy, że legitymizacja uniwersalnego systemu ochrony praw człowieka jest oparta nie tyle na treści wartości uznawanych w tym systemie, ale na uznanych w nich rozstrzygnięciach metaaksjologicznych, dotyczących tego, jak istnieją wartości podstawowe dla tego systemu i czy są one poznawalne. Walor legitymizacyjny posiada przede wszystkim uznanie obiektywnego charakteru tych wartości i ich poznawalności. Realizacja zasadniczego celu zakłada uporządkowanie podstawowych pojęć dotyczących problematyki powszechności praw człowieka – termin „powszechność” stosowany w odniesieniu do praw człowieka w kontekście uniwersalnego systemu ochrony ma wiele znaczeń. Przede wszystkim odróżnić trzeba powszechność w aspekcie opisowym i w aspekcie normatywnym. W przypadku powszechności w aspekcie normatywnym w grę może wchodzić powszechność w sensie ideowym i powszechność w sensie pozytywnoprawnym. Uzasadnienie tej ostatniej jest też uzasadnieniem poszukiwanej tu legitymizacji uniwersalnego systemu ochrony praw człowieka. Prowadzone analizy prowadza także do sformułowania postulatów dotyczących sposobu definiowania uzasadnienia aksjologicznego norm prawnych. Modyfikacji wymagają powszechnie przyjmowane w polskiej teorii prawa definicje relatywizujące takie uzasadnienie do ocen przyjmowanych przez konkretne podmioty oceniające lub ich grupy. (shrink)

Problem of Axiological Legitimization of the Universal System of the Protection of Human Rights Summary In this paper it is argued that legitimization of the universal system (UN-system) of the protection of human rights depends primary not from the content of values recognised as fundamental but rather from metaaxiological solutions related to the way of existence and to the possibility of cognition of these values. Legitimisation is based on the recognition of an objective nature and of cognoscibility of basic values. (...) Realisation of the primary aim of this paper is linked to the problem of different meanings of the notion of universality, used in the context of the universal system of the protection of human rights. First, descriptive and normative (prescriptive) meanings have to be distinguished. In the case of normative sense, there are moral and legal meanings of “universality”. An axiological justification of the universality of human rights in the legal sense leads to the legitimisation of the universal system. It is shown that modifications of – broadly accepted in the Polish theory of law – definitions of an axiological justification of legal norms are needed. These definitions base such a justification on the valuations made by particular groups of subjects. It is argued that it is much more convenient to refer to valuations understood as meanings of sentences of certain kind. -/- Streszczenie W artykule zmierza się do uzasadnienia tezy, że legitymizacja uniwersalnego systemu ochrony praw człowieka jest oparta nie tyle na treści wartości uznawanych w tym systemie, ale na uznanych w nich rozstrzygnięciach metaaksjologicznych, dotyczących tego, jak istnieją wartości podstawowe dla tego systemu i czy są one poznawalne. Walor legitymizacyjny posiada przede wszystkim uznanie obiektywnego charakteru tych wartości i ich poznawalności (uznanie kognitywizmu aksjologicznego). Realizacja zasadniczego celu zakłada uporządkowanie podstawowych pojęć dotyczących problematyki powszechności praw człowieka – termin „powszechność” stosowany w odniesieniu do praw człowieka w kontekście uniwersalnego systemu ochrony ma wiele znaczeń. Przede wszystkim odróżnić trzeba powszechność w aspekcie opisowym i w aspekcie normatywnym. W przypadku powszechności w aspekcie normatywnym w grę może wchodzić powszechność w sensie ideowym (moralnym) i powszechność w sensie pozytywnoprawnym. Uzasadnienie tej ostatniej jest też uzasadnieniem poszukiwanej tu legitymizacji uniwersalnego systemu ochrony praw człowieka. Prowadzone analizy prowadza także do sformułowania postulatów dotyczących sposobu definiowania uzasadnienia aksjologicznego norm prawnych. Modyfikacji wymagają powszechnie przyjmowane w polskiej teorii prawa definicje relatywizujące takie uzasadnienie do ocen przyjmowanych przez konkretne podmioty oceniające lub ich grupy. (shrink)

Offering a new interdisciplinary approach to global justice and integrating the insights of international relations and contemporary ethics, this book asks whether the core norms of international law are just by appraising them according to a standard of global justice grounded in the advancement of peace and protection of human rights.

By a majority of 9–8, the Grand Chamber of the ECtHR has declared the application of Ms Gross inadmissible for abuse of the right of individual application. The Second Section judgment of 2013, in which the Court found Switzerland to have violated Ms Gross' right to decide when and how to die included in the right to private life protected by Article 8 ECHR, will now not become final...

In Gross v Switzerland, the European Court of Human Rights held by 4-3 majority that Switzerland had violated the right to decide when and how to die included in the right to respect for private and family life under Article 8 of the European Convention on Human Rights. To comply with the ruling, Switzerland must issue guidance detailing the circumstances (if any) under which physicians may lawfully prescribe lethal medication to competent individuals who have a voluntary and settled wish to (...) die, yet whose suffering is not the product of a medical condition likely to result in death in the near future. (shrink)

This chapter applies the modified philosophy of Alasdair MacIntyre to mental health law, and in particular to the mental health tribunal. The natural law approach of Thomas Aquinas is used to assist in this. It is argued that, for law to be just in pre-modern terms, it requires that it be assessed as rational together with the care it supports as a single entity. As such, according to a modified version of the Thomistic Aristotelian ethics of MacIntyre, justice would require (...) reconciliation of both doctor and patient narratives regarding care, possibly at the tribunal. It is suggested that psychiatric intensive care, in particular, could benefit from this approach. The approach might be seen as an additional protection to human rights-based considerations. It is also argued that the tribunal can be seen differently, according to the tradition of enquiry. (shrink)

The right to bodily integrity is a controversial issue within moral, political and legal discourse. This first collection of scholarly research articles provides a comprehensive overview of the debates around the ethical and legal aspects of the right to bodily integrity and its implications in theory and practice. The selected essays examine topics such as pregnancy and reproduction, altering children's bodies, transplantation, controversial modifications and surgeries, and experimentation and dead bodies.

Scholars have argued that we have compelling reasons to combat climate change because it threatens human rights, referred to here as ‘climate rights’. The prospects of climate rights are analysed assuming two basic desiderata: its accuracy in capturing the normative dimension of climate change ; and its ability to generate political measures. In order for climate rights to meet these desiderata certain conditions must be satisfied: important human interests are put at risk by global climate change; there is an identified (...) rights-holder and obligation-bearer; this relationship is codified in a legitimate formal structure; it is feasible to claim the rights; an ‘enforcement mechanism’ could strengthen compliance. When asserting climate rights it is insufficient to consider the moral ground or actual enforcement possibilities by themselves. Normative and practical aspects are closely interlinked and must be studied in tandem. (shrink)

The right to food is recognized as a basic right under international human rights law. The lack of implementation of the right is a challenge for societies around the world. The failures in implementation are leading stakeholder's to strongly advance more appropriate standards vis-a-vis the right to food. The concept of food sovereignty for instance has gained importance in this regard. The concept of food sovereignty is interpreted to be larger in scope than the right to food. Food sovereignty is (...) not limited to the making "provision" of food to the beneficiaries by the state. In addition, it also mandates the empowerment of communities by the adoption of policies to secure land, food production and consumption, etc. -/- In 2010, the UN Special Rapporteur on the Right to Food recognized the wider import of the right to food based on the concept of food sovereignty. The Rapporteur emphasised on the provision of land for instance as essential to right to food. The acceptance of food sovereignty as a benchmark for state performance is one of the most notable developments in the field of economic, social and cultural rights. This chapter discusses the role of the concept of food sovereignty, and how it is shaping international and domestic policy frameworks. (shrink)