Human Rights

This paper provides a synopsis of the human rights enforcement in Bangladesh, which marks its 50 years in 2021 since its independence. After a theoretical background on how human rights are perceived as legal and political instruments, it critically discusses human rights provisions and explores the legal and institutional frameworks on human rights enforcement in Bangladesh—(re)construed in 50 years (1971–2021). Finally, it divulges the controversies in human rights enforcement and a roadmap to address them by making some suggestions: multiple legislative, (...) administrative, and judicial reforms are required to tackle human rights abuses to ensure punishment for the abusers and restitution for the victims. The paper concludes with the notion that the positive will of the relevant stakeholders (legislature, executive, and judiciary) is the key to upholding and protecting the human rights of Bangladeshi citizens. The significance of this paper lies in exploring the complexities associated with the laws and insular national politics, which often debars the enforcement of human rights and crucially compromises Bangladesh’s ability to empower its citizens. (shrink)

This article develops a discursive explanation of mixed constitution: mixed constitutional ideas and discourse generate mixed constitutional design and practice. On that base, it explores the nature, factors, and functions of the mixed constitution in Vietnam. The emergence of competing constitutional ideas (Confucian, socialist, liberal, universal) animates a constitutional discourse in which different actors adhere to different ideas. Consequently, the 2013 Constitution of Vietnam embodies a mixture of the ideas in its provisions on political institutions, economy, and especially human rights. (...) The enforcement of the constitution induces competing claims to constitutional meanings. The mixed constitution is shaped by path dependency and global diffusion of constitutional ideas. It functions as the base to constrain ideational monopoly and widen the public discourse on constitutional development. (shrink)

Two important recent books on migration and justice argue for different approaches to how we should view borders. Alex Sager defends open borders, while Sarah Song argues for the rights of democratic communities to find their own balance between open and closed borders. While both authors present significant considerations in defence of their views, in this article I argue that a human-rights-oriented account of migration justice captures their strengths well while not sharing the weaknesses I identify with each. In addition, (...) the approach I favour offers some progressive pathways for holding each other to account in reducing migration injustice in our actual world, in ways that are both feasible and normatively compelling. (shrink)

In the years that saw the transition from the sixteenth to the seventeenth century, a controversy arose in Spain over the problem of the harmony between created freedom and divine omnipotence. This dispute arose in Salamanca, but it would have important consequences for the conception of man in Europe from then on. In my proposal, I pay attention to Domingo Báñez, an important member of the School of Salamanca, which point of view has been somewhat blurred due to the heat (...) of the polemic. In particular, I would like to emphasise his way of pointing to human dignity as the basis of the relationship between divine and human freedom. Such dignity does not lie in a misunderstood autonomy but in its dependence on God. Thus, according to Báñez, human freedom is an image of divine freedom, so that its dignity is not so much reflected in its independence from the power of God—which only occurs, to a certain extent, in sin—but in the concord between the two freedoms. (shrink)

This article explores Southern Saami reindeer herders’ experiences and contestations over state consultation and corporate dialogue during a conflict over the Øyfjellet wind energy project in Norway. Informed by a committed research approach and juxtaposition with findings from Indigenous peoples' territorial struggles in Latin-America, the article provides critical perspectives on governance practices in a Nordic-Saami green colonial context. The research draws on ethnography from a consultation meeting between Jillen Njaarke, the impacted reindeer herding community, and state authorities, as well as (...) diverse written material. The study suggests that the state- and corporate-led “dialogues” displaced the root cause of the conflict, revealed epistemic miscommunication, and perpetuated relations of domination which limited emancipatory effects for Jillen Njaarke. The premises and discourses underpinning the “dialogues” further reproduced racist notions which devalue ancestral Saami reindeer herding knowledges, practices, and landscape relations. These findings challenge dialogue as prescription of good governance and conflict resolution in a context where democracy and compliance with Indigenous peoples’ rights are perceived as high. (shrink)

This article proposes a systematic approach to designing and assessing participatory processes, built from principles in the field of human rights. It argues that participatory processes should be organised around human rights principles which provide detailed but flexible guidance on participatory processes. Drawing from well-established human rights principles and the commentary of human rights bodies on participation, the article outlines a framework that can be used to advocate for, establish, implement, and evaluate participatory processes. It addresses four normative questions relating (...) to participation: what decisions require participation, who should participate, how should participation be implemented, and what consequences should it have on subsequent decisions with human rights norms informing each of these questions. (shrink)

Today’s scholarship and policymaking on business and human rights (BHR) urges businesses to better understand their human rights responsibilities and remedy them, when and if abuses do occur. Despite the public discourse about businesses and human rights, the state—as the main duty bearer in international human rights law—plays a fundamental role as the protector and enforcer of human rights obligations. Yet, the existing literature overlooks state involvement as perpetrators of abuse in the corporate context. We develop the term economic complicity (...) to shed light on the state’s role in directly or indirectly abusing human rights within a corporation’s sphere of influence, such as police violence toward nonviolent protesters or granting environmental licenses without adhering to legally required community consultations. We ask: What contributes to the state’s engagement in economic complicity in corporate human rights abuses? We assess hypotheses emergent from the democratic change and development studies literatures with a unique database that includes economic complicity data from Latin America, the Corporations and Human Rights Database (CHRD). This research has important theoretical implications for the business ethics and BHR literatures, as understanding economic complicity highlights the need for business actors to avoid shirking their moral responsibilities to not only ‘do no harm’ but also to protect human rights when they are threatened by the state. (shrink)

Medical interventions are usually categorized as “invasive” when they involve piercing the skin or inserting an object into the body. However, the findings of Bluhm and collaborators (2023) (hencef...

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this right-to-life argument emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work by Hugo (...) Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the obligation to use nonlethal incapacitation (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground. (shrink)

The way many human rights advocates frame the international norm against child, early, and forced marriage (CEFM) has shifted in the past decade. While CEFM has historically been framed as driven by poverty and underdevelopment, advocates have more recently discussed the problem with a feminist sexuality frame. What leads advocates to change their framing about an international norm? We build an argument that stresses how (a) the nature of the frame, (b) the characteristics of the advocates, and (c) the characteristics (...) of the discursive environment interact to determine whether and to what extent advocates will adopt an alternative frame. We use a multi-methods approach (machine-learning text analysis, process tracing, and interviews) to examine the process of frame adoption around an international norm. Our theoretical understanding of international norms requires a better grasp on the role of framing, especially framing among the very norm entrepreneurs that are critical to international norm diffusion. (shrink)

Although significant literature and jurisprudence has amassed on rights-based climate litigation over recent years, less research and case law has emerged on poverty-related court cases and the fulfilment of economic, social, and cultural rights (ESCR) in Canada. Fewer still are studies exploring the interlinkages between these areas of inquiry. The purpose of this paper is to explore, using Canada as a case study, rights-based developments in climate litigation cases and how these could impact the innovative advancement of ESCR (e.g. to (...) food, housing and water). Typically, issues of justiciability and standing emerge, impeding the realization of such rights. Given the grave threats we now face, climate cases and social movements must be brought together to better hold state actors accountable for their rights obligations. We implore the legal community to explore ways to traverse juridical obstacles to realize the interdependencies of human rights and protect the planet from calamitous climate change. (shrink)

The article examines the record of compliance with the UN Committee against Torture’s decisions in individual complaints cases. Theoretically, I expect that compliance will be the outcome of a combination of normative and rationalist factors: States committed to human rights protection will comply even in the absence of enforcement but only as long as compliance costs remain relatively low. Using a data set covering all adverse decisions issued until 2018 and information on their compliance status, I employ fuzzy-set qualitative comparative (...) analysis to identify necessary and sufficient conditions for the outcomes of compliance and noncompliance. The analysis reveals that the conditions tested—liberal democracy, nonuse of political terror, violation type, and strong civil society—are in part individually (near-)necessary and jointly sufficient for compliance, while the presence of their complements is consistent with noncompliance. The Committee against Torture thus appears to be able to elicit (some) state compliance with its decisions, if mostly only with respect to certain kinds of states and select types of violations. (shrink)

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one fulfilment option. These (...) delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties. (shrink)

In this paper, I analysed the events of 7th August 2020 in Warsaw, when 48 people were detained by the Polish police who brutally raided solidarity demonstration with non-binary activist Margot Szutowicz. The aim of the paper is to explore queer activism in Poland on microsociological level using Gabriel Tarde imitation theory. I tried to show how individual experience of resistance gave rise to new, innovative forms of activism which became a social phenomenon. In my research, I used in-depth interviews (...) with some of detainees and over 180 diaries/memoirs of Polish LGBTQIA people. (shrink)

Increasingly firm rejections of the distinction between positive and negative human rights as incoherent have created a gap between theory and practice, as well as tensions within legal doctrinal and philosophical literature. This article argues that the distinction can be preserved by means of a structural account of the interaction of duties within human rights, anchored in case law on the right to freedom of assembly in Article 11, the right to free elections in Article 3 of Protocol 1, and (...) the right to security as enshrined in Articles 2, 3, 5, and 8 of the European Convention on Human Rights. (shrink)

The purpose of this article is to reconstruct Petrażycki’s ideas on human rights by using the scattered and sometimes contradictory remarks on the issue to be found in his works. Leon Petrażycki did not pay special attention to human rights in his works, although this problematic has been a major focus of legal theory and legal philosophy, including the Russian one, throughout the modern history. Petrażycki viewed law as imperativeattributive emotions experienced by individuals. At the same time, the imperative component (...) of such emotions arises as a reaction to the attributive one – i.e., an obligation is conditioned by another’s claim, and it is the satisfaction of the obligee’s interests that plays a decisive role, not the mere performance of the corresponding obligation as such. Petrażycki’s assumed that certain intuitive legal beliefs, being fundamental in nature, are absolute and do not derive from positive law – e.g., the beliefs that torture, rape, human enslavement, and certain methods of capital punishment are unacceptable. Such psychological beliefs can well be equated to human rights. However, Petrażycki denied that a right is an intention to implement one’s selfish interests. Petrażycki argued that law, as well as morality, pursues public welfare and prosperity, and the spiritual and cultural education of humanity. It is not only human beings that can obligees. Petrażycki held that animals, spiritual beings, or even paintings can play this role as long, as the satisfaction of their claims becomes the focus of emotions experienced of an imperative side. He obviously did not share a liberal understanding of human rights as personal freedoms. Even more, Petrażycki believed that his social ideal of universal active love is the ultimate goal of law’s educational effects, and this ideal requires the overcoming and elimination of exactly those aspects of the human psyche that manifest themselves in the rights understood as personal freedoms. By the same token, Petrażycki anticipated many trends that characterise the contemporary understanding of human rightsKeywords: participation of citizens in making town planning decisions; principles of town planning law; public discussions; public hearings; judicial protection; local referendum; survey; cancellation of a municipal legal act by way of self-control. (shrink)

Being sure of each other is the blossoming of Kimberley Brownlee’s earlier work on the intrinsic value and qualities of human connection (2013, 2016c, 2016b), opening with a scene from A. A. Milne’s House at Pooh Corner: lost in the woods together, Piglet takes Pooh’s paw ‘just to be sure’ of his friend. The importance of social connection is often overlooked because it is central to our lives, like breathable air. Brownlee’s work highlights the need for social connection, as deserving (...) of more philosophical attention and practical protection through rights. But her key insight is that receiving relational goods isn’t all that matters: being able and permitted to provide relational goods to others, as Piglet and Pooh receive and offer each other reassurance, is just as essential for our wellbeing. Brownlee argues these interests are strong enough to ground rights (2016c: 28). (shrink)

The conception of property at the basis of Hegel’s conception of abstract right seems committed to a problematic form of “possessive individualism.” It seems to conceive of right as the expression of human mastery over nature and as based upon an irreducible opposition of person and nature, rightful will, and rightless thing. However, this chapter argues that Hegel starts with a form of possessive individualism only to show that it undermines itself. This is evident in the way Hegel unfolds the (...) nature of property as it applies to external things as well as in the way he explains our self-ownership of our own bodies and lives. Hegel develops the idea of property to a point where it reaches a critical limit and encounters the “true right” that life possesses against the “formal” and “abstract right” of property. Ultimately, Hegel’s account suggests that nature should precisely not be treated as a rightless object at our arbitrary disposal but acknowledged as the inorganic body of right. (shrink)

This paper develops a critic on International Human Rights departing from the criticism directed to utopian discourses of political organization of society, as both of them share an evolutionist and ethnocentric foundation, namely, the universal and unconditionally valid reason. The idea is to undertake a serious criticism on reason, always potentially dystopian, in order to unravel the colonialist ethos and the civilizing character of current Public International Law leading discourse of Human Rights.

The article attempts to apply Alexis de Tocqueville`s views in the area of selected second- and third-generation human rights, i. e. the rights that over the course of the first half of the 19 th century were not - with some exceptions - anchored in positive law. It takes form of sort of intellectual exercise in which, based on Tocqueville`s work, his potential stance towards chosen human rights is reconstructed. The paper briefly presents modern standards referring to second- and third-generation (...) human rights, and confronts these with legal provisions provided by the French constitutions during and prior to Tocqueville`s life. The following parts of the paper show general Tocqueville`s stance towards the concept of human rights and attempt to answer the question issued in the title of the article. (shrink)

Journal of Social Philosophy, EarlyView.

Reprint of an article first published in the _African Human Rights Law Journal_ (2011).

Journal of Social Philosophy, EarlyView.

In a landmark 1994 case, the Court of Justice of the European Union ruled that individuals had the right to ask for Internet links that contained certain information about them to be delisted by search engines. This came to be known as the “right to be forgotten.” This paper discusses the extent to which this right is consistent with the Islamic tradition. Following an overview of some aspects of the right to be forgotten and why it is endorsed in the (...) European Union with its emphasis on privacy but not in the USA with its exaltation of free speech, the paper discusses two related issues: (1) elements in the Islamic tradition potentially conducive to endorsing a particular understanding of the right to be forgotten and (2) some possible obstacles from that tradition that could challenge the recognition of this right from an Islamic perspective. The paper concludes that despite some challenges, including Qur’anic verses and certain views, activities, and institutions, the right to be forgotten is defendable from within the Islamic tradition by reference to the principle of _satr_, which breaches that one should not seek to publicize personal information that causes harm to other people or even to oneself. The paper seeks to contribute to discussions on this new right by showing what a religious tradition such as Islam can offer to them. (shrink)

Human rights constitute a universal concern in different countries’ responses to COVID-19. Vietnam is internationally praised for its success in containing the pandemic; nevertheless, human rights issues are a key area that needs to be assessed and improved. Little legal and ethical research is available on human rights in Vietnam, particularly in its response to COVID-19, however. In Vietnam, decentralization took place during the pandemic: higher authorities delegated power to lower ones to make and implement public health measures. Unfortunately, many (...) measures made and implemented decentrally caused human rights concerns or breaches. This article aims to study what makes such measures cause human rights concerns or breaches. It argues that several social, legal, and political factors, including an inadequate understanding of human rights, the undefined breadth of discretion, and lack of supervision, are underlying factors for such problematic decentralized measures. Accordingly, this paper proposes two solutions (i) improving the supervision of the decentralization process, and (ii) improving the understanding of human rights. While Vietnam should learn from the international community to improve its measures, lessons and experience from Vietnam can also contribute to a richer dialogue and better protection of human rights globally. (shrink)

A review of what a "human right" is. It is a claim that every person can make as an individual who is a part of the human race and which requires an underlying respect for all human beings. The author maintains that human rights can only be realized through conversations with those across all genders, ages, cultures and religions.

The challenge -- No silver bullet -- Protect, respect and remedy -- Strategic paths -- Next steps.

Before military action, and even before mobilization, the decision on whether to go to war is debated by politicians, pundits, and the public. As they address the right or wrong of such action, it is also a time when, in the language of the just war tradition, the wise would deeply investigate their true claim to jus ad bellum (“the right of war”). Wars have negative consequences, not the least impinging on human life, and offer infrequent and uncertain benefits, yet (...) war is part of the human condition. James G. Murphy’s insightful analysis of the jus ad bellum criteria—competent authority, just cause, right intention, probability of success, last resort, and proportionality—is grounded in a variety of contemporary examples from World War I through Vietnam, the "soccer war" between Honduras and El Salvador, Afghanistan, and the Middle East conflict. Murphy argues persuasively that understanding jus ad bellum requires a primary focus on the international common good and the good of peace. Only secondarily should the argument about going to war hinge on the right of self-defense; in fact, pursuing the common good requires political action, given that peace is not simply the absence of violence. He moves on to demonstrate the interconnectedness of the jus ad bellum criteria, contending that some criteria depend logically on others—and that competent authority, not just cause, is ultimately the most significant criterion in an analysis of going to war. This timely study will be of special interest to scholars and students in ethics, war and peace, and international affairs. (shrink)