RESUMEN El artículo analiza el complejo tema del derecho a la memoria como derecho humano de carácter cultural así como su consagración en el ordenamiento jurídico chileno. El trabajo alude a la problemática del reconocimiento de los nuevos derechos fundamentales y el modo de hacerlos efectivos, para lo cual se analizará la estructura de dicho derecho en cuanto a su contenido esencial, titularidad y garantías. Finalmente, se plantea el tema de la protección de los derechos implícitos a través de una (...) interpretación sistemática del sistema constitucional chileno. (shrink)

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. (...) Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong? (shrink)

Although sovereign jurisdictional authority is not itself a kind of property right for Hobbes, it is the object of the sovereign’s (not the state’s) proprietary rights. Jurisdictional authority for Hobbes is foundationally over persons rather than territory, so that the sovereign’s territorial jurisdiction is parasitic on jurisdiction over persons. Territory nevertheless plays a significant role in determining subjects’ political obligations because the sovereign’s ability to protect subjects is necessary for such obligations, and control over space is necessary (...) to protect subjects. Yet Hobbes shows why the modern ideology of the state does not univocally posit the state as an intrinsically territorial entity. There are two traditions here: The Lockean one that, in grounding jurisdictional authority in private dominion over things, portrays the state as intrinsically territorial, and the Hobbesian one that, in deriving property rights from jurisdictional authority, does not. (shrink)

Although sovereign jurisdictional authority is not itself a kind of property right for Hobbes, it is the object of the sovereign’s proprietary rights. Jurisdictional authority for Hobbes is foundationally over persons rather than territory, so that the sovereign’s territorial jurisdiction is parasitic on jurisdiction over persons. Territory nevertheless plays a significant role in determining subjects’ political obligations because the sovereign’s ability to protect subjects is necessary for such obligations, and control over space is necessary to protect subjects. (...) Yet Hobbes shows why the modern ideology of the state does not univocally posit the state as an intrinsically territorial entity. There are two traditions here: The Lockean one that, in grounding jurisdictional authority in private dominion over things, portrays the state as intrinsically territorial, and the Hobbesian one that, in deriving property rights from jurisdictional authority, does not. (shrink)

The dissertation explores the implications of the liberal value of individual autonomy for the rights of cultural minorities in liberal societies. Liberals traditionally have assumed that respect for autonomy precludes the political recognition of citizens' cultural identities. But in recent years a number of self-styled "liberal nationalists" have argued that honoring the value of autonomy actually entitles cultural minorities and their members to a plethora of cultural rights, including political autonomy, minority jurisdiction over land and language, the public (...) subsidization of ethnic festivals, the symbolic recognition of ethnic and religious groups, and even a right to national self-determination. I argue that both the "liberal neutralist" and the "liberal nationalist" accounts of what individual autonomy stands for are mistaken. I present an alternative way of viewing the connection between the value of individual autonomy and claims for cultural recognition, one that preserves the primacy and inherent complexity of this central liberal value. Rightly understood, liberal autonomy supports the political recognition of cultural identity in principle and in a wide range of cases, but the principle and the cases fall well short of the extravagant claims recently made in its name. My analysis suggests that the principle of liberal autonomy sustains a civil right to cultural expression in the manner of classical civil rights, an approach that many liberal democracies implicitly have been moving toward in recent years. (shrink)

-/- In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that (...) allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy. (shrink)

Domestic courts are often quoting foreign case law on human rights. The conversation pursued through cross-referencing across jurisdictions has added to the globalization of international human rights standards. As the practice is gaining ground and becoming a more permanent feature of domestic judgments, its relevance needs to be examined. A closer look at the practice will bring forth a more realistic understanding of the approaches of domestic courts and the advantages which they offer to the institution. This paper (...) raises few questions on the value and influence of cross-referencing in the area of human rights. Questions in this regard can be posed as to (a) whether cross-referencing is reflective of an emerging consensus on the subject matter? (b) Is it strategic for domestic courts to quote foreign case law? (c) Is the practice of cross-referencing simply a trend or an urge to belong to a community of courts? (d) Is the practice of relevance towards the implementation and advancement of international human rights standards? The topic can shed light on broader themes including the universality of human rights, contestations/disagreements over human rights standards, and the measure of acceptability of international human rights standards within domestic settings. This paper discusses the practice, its role and influence in relation to international human rights standards. Three judgments [of the courts of Nepal, India and Singapore] addressing the human rights and homosexuality agenda have been illustrated for discussion. (shrink)

I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon newly according legal rights to animals. Compensatory injustice would likely (...) result from such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

We typically associate sovereignty with the modern state and presuppose the coincidence of political rule, public power, government, legitimacy and jurisdiction with territorially delimited states. We are also used to referencing liberal principles of justice, egalitarian ideals of fairness, republican conceptions of non-domination and separation of powers, and democratic ideas of popular sovereignty, for the standards that should constitute, guide, limit and legitimate the exercise of sovereign power. This Article addresses an important challenge to these principles: the reemergence of theories (...) and claims to jurisdictional/political pluralism on behalf of non-state “nomos groups” within well-established liberal-democratic polities. Theories of jurisdictional political pluralism purport to account for the independent sovereign authority of the corporate religious, while providing a “postmodern,” “permeable,” “pluralist” conception of sovereignty allegedly more appropriate descriptively to twenty-first century reality and more attractive normatively, than the modern statist version. This Article analyzes and assesses these claims. It criticizes the disassociation of the sovereignty concept from publicly accountable power, challenges the displacement of rights-holders from individuals to corporate groups, and offers a different, federal alternative to anachronistic or normatively flawed modern monistic statist conceptions. My purpose is to preserve the key achievements of democratic constitutionalism and to apply them to every level on which government, power, rule, and/or domination is exercised. (shrink)

Individuals’ implicit theories that people’s character is fixed versus malleable are associated with their holding beliefs that morality is primarily determined by fulfilling prescribed duties versus upholding basic rights of others, respectively. Three studies provide evidence that the ability to recognize that a situation can legitimately be considered from a moral point of view is interactively dependent upon the nature of perceivers’ implicit theories and the extent to which the issue involves a violation that emphasizes a failure (...) to fulfill a prescribed duty versus a failure to uphold a fundamental right of others. The studies experimentally manipulated the characteristics of a hypothetical business situation to involve either a duty-based violation or a rights-based violation or no behavioral violation. In addition, Study 1 experimentally manipulated subjects’ implicit theories, while Studies 2 and 3 measured subjects’ chronically held implicit theories. Collectively, the studies provide consistent evidence that entity theorists have greater moral awareness than incremental theorists when considering situations involving duty-based violations, while incremental theorists have greater moral awareness than entity theorists when considering situations involving rights-based violations, and moral awareness is not significantly different for perceivers who are neither strongly entity nor incremental theorists, when considering situations involving duty- versus rights-based violations. Study 3 also found evidence of a moderated-mediated association between violation type and moral intentions, through moral awareness as a mediator, moderated by perceivers’ implicit theories. (shrink)

The author argues the concept of human rights is a development of the older notion of natural rights and that the modern understanding of natural rights evolved in the context of the European struggle to legitimate its overseas empires. The French Revolution changed this by, in effect, linking human rights to the idea of citizenship. Human rights were thus tied not only to a specific ethical-legal code but also implicitly to a particular kind of political (...) system, both of inescapably European origin. In both cases, however, being employed was an underlying idea of universality whose origins are to be found in the Greek and Roman idea of a common law for all humanity. He ends by arguing that to defend human rights against its non-Western critics, one must be aware of the genealogy of the concept and then be prepared to endorse an essentially Western European understanding of the human. (shrink)

Is it possible for the state simultaneously to respect deep cultural differences and to protect the hard-won citizenship rights of vulnerable group members, particularly women? This 2001 book argues that it is not only theoretically needed, but also institutionally feasible. Rejecting prevalent normative and legal solutions to this 'paradox of multicultural vulnerability', Multicultural Jurisdictions develops a powerful argument for enhancement of the jurisdictional autonomy of religious and cultural minorities while at the same time providing viable legal-institutional solutions to (...) the problem of sanctioned intra-group rights violation. This new 'joint governance' approach is guided by an innovative principle that strives for the reduction of injustice between minority groups and the wider society, together with the enhancement of justice within them. This book will interest students of political and social theory, law, religion, institutional design, as well as cultural and gender studies. (shrink)

A prominent approach in the debate on territorial rights claims that a group may have jurisdictional rights over a particular land if that land has become a repository of value for the group. This justification relies on a premise which has remained largely unsubstantiated, namely that having jurisdictional rights should be our preferred means for ensuring the group’s retaining of the land’s embedded value. This article discusses a recent attempt to fill this gap. David Miller (...) acknowledges that the value could be retained by the group if it has private property rights. However, he argues that because such rights can be changed at will by the holder of jurisdictional rights the group’s retaining of value is unacceptably insecure. I argue that this attempt fails. Miller’s argument is briefly stated so I start with some reconstructive work. Most importantly, I suggest that the argument relies on a descriptive claim about empirical probabilities, namely that the group’s having jurisdictional rights (in international law) provides the largest feasible reduction of insecurity. I then provide some tentative suggestions about expected state behavior which challenge the validity of that descriptive claim; I argue that a reform of international law which confers internationally enforced property rights on the relevant groups—rather than jurisdiction—may provide a similar (or even relatively larger) reduction of insecurity. My tentative conclusion is that Miller’s appeal to insecurity fails to provide the “embedded value” approach (favored by him and others) with the needed bridge from property rights to rights of jurisdiction. (shrink)

An increasingly popular view in scholarly literature and public debate on implicit biases holds that there is progressive moral potential in the discomfort that liberals and egalitarians feel when they realize they harbor implicit biases. The strong voices among such discomfort advocates believe we have a moral and political duty to confront people with their biases even though we risk making them uncomfortable. Only a few voices have called attention to the aversive effects of discomfort. Such discomfort skeptics (...) warn that, because people often react negatively to feeling blamed or called-out, the result of confrontational approaches is often counterproductive. To deepen this critique, I distinguish between awareness discomfort and interaction discomfort, developing a contextual approach that draws on recent research on negative affect and emotions to chart a more complete picture of the moral limits of discomfort. I argue that discomfort advocates risk overrating the moral potential of discomfort if they underestimate the extent to which context shapes the interpretation of affect and simple, raw feelings. (shrink)

To what extent should we focus on implicit bias in order to eradicate persistent social injustice? Structural prioritizers argue that we should focus less on individual minds than on unjust social structures, while equal prioritizers think that both are equally important. This article introduces the framework of transactive memory into the debate to defend the equal priority view. The transactive memory framework helps us see how structure can emerge from individual interactions as an irreducibly social product. If this is (...) right, then debiasing interventions are structural interventions. One upshot is that the utility of the individual versus structural distinction is not apparent for the purposes of intervention. (shrink)

Deleuze and jurisdiction : expressionism in jurisprudence -- Personal jurisdiction : the "method of dramatization" in the law of persons -- Minority and personal jurisdiction : judging sex in re alex -- Persons of animal law -- Deleuze, the law of things and subject-matter jurisdiction -- To put to flight : the right of possession -- The activity of judgment : law of actions and the procedural genre of jurisprudence -- Jurisdiction of control : judgment and procedural forms in Thomas (...) v Mowbray -- The locality of law : jurisdiction in Deleuze. (shrink)

In recent years the concept of “user’s rights” has gained considerable currency in discussions of the limits of intellectual property in general, and of copyright in particular. Those arguing in favour of the public domain and increased limitations on copyright have increasingly sought to fight fire with fire – to place substantive user’s rights against the claims of intellectual property. User’s rights have in some jurisdictions received explicit Supreme Court imprimatur and they are expressly recognised in key (...) charters of human rights. Yet there is a residual uncertainty about the appropriateness of this language. Is it correct, as a general conceptual and normative matter, to speak of the broad liberties citizens have regarding access to ideas and information as rights? The few treatments dealing directly with this question have argued – often from a Hohfeldian footing – that ascriptions of user’s rights are inappropriate. Even commentators largely sympathetic to the public domain have found themselves drawn to this conclusion. In this paper, I vindicate the general applicability of rights language by arguing these deflationary accounts are mistaken – and are mistaken even in terms of the theories of rights they themselves deploy. (shrink)

What is wrong with colonialism? The standard—albeit often implicit—answer to this question has been that colonialism was wrong because it violated the territorial rights of indigenous peoples, where territorial rights were grounded on acquisition theories. Recently, the standard view has come under attack: according to critics, acquisition based accounts do not provide solid theoretical grounds to condemn colonial relations. Indeed, historically they were used to justify colonialism. Various alternative accounts of the wrong of colonialism have been developed. (...) According to some, colonialism involved a violation of territorial rights grounded on legitimate state theory. Others reject all explanations of colonialism's wrongfulness based on territorial rights, and argue that colonial practices were wrong because they departed from ideals of economic, social, and political association. In this article, we articulate and defend the standard view against critics: colonialism involved a procedural wrong; this wrong is not the violation of standards of equality and reciprocity, but the violation of territorial rights; and the best foundation for such territorial rights is acquisition based, not legitimacy based. We argue that this issue is not just of historical interest, it has relevant implications for the normative evaluation of contemporary inequalities. (shrink)

In this chapter, a reprinted article from Southern African Public Law (2010), I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice (...) upon newly according legal rights to animals. Compensatory injustice would likely result from such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

The last few decades have given rise to the study of practical reason as a legitimate subfield of philosophy in its own right, concerned with the nature of practical rationality, its relationship to theoretical rationality, and the explanatory relationship between reasons, rationality, and agency in general. Among the most central of the topics whose blossoming study has shaped this field, is the nature and structure of instrumental rationality, the topic to which Kant has to date made perhaps the largest contribution, (...) under the heading of his treatment of hypothetical imperatives. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Convention for Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine: Convention on Human Rights and BiomedicineCouncil of EuropePreambleThe Member States of the Council of Europe, the other States and the European Community signatories hereto,Bearing in mind the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;Bearing (...) in mind the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;Bearing in mind the European Social Charter of 18 October 1961;Bearing in mind the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966;Bearing in mind the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 January 1981;Bearing also in mind the Convention on the Rights of the Child of 20 November 1989;Considering that the aim of the Council of Europe is the achievement of a greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Conscious of the accelerating developments in biology and medicine;Convinced of the need to respect the human being both as an individual and as a member of the human species and recognising the importance of ensuring the dignity of the human being; [End Page 277]Conscious that the misuse of biology and medicine may lead to acts endangering human dignity;Affirming that progress in biology and medicine should be used for the benefit of present and future generations;Stressing the need for international co-operation so that all humanity may enjoy the benefits of biology and medicine;Recognising the importance of promoting a public debate on the questions posed by the application of biology and medicine and the responses to be given thereto;Wishing to remind all members of society of their rights and responsibilities;Taking account of the work of the Parliamentary Assembly in this field, including Recommendation 1160 (1991) on the preparation of a Convention on bioethics;Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine;Have agreed as follows:Chapter IGeneral provisionsArticle 1. (Purpose and object)Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.Article 2. (Primacy of the human being)The interests and welfare of the human being shall prevail over the sole interest of society or science.Article 3. (Equitable access to health care)Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. [End Page 278]Article 4. (Professional standards)Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.Chapter IIConsentArticle 5. (General rule)An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.The person concerned may freely withdraw consent at any time.Article 6. (Protection of persons not able to consent)1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or... (shrink)

This chapter considers whether collective self-determination, which justifies a right of jurisdiction, can also generate a right to control natural resources. It discusses the limits of that argument, focusing especially on the limits of justice. Part One deals with territorial claims over unoccupied islands, the seabed, the Arctic, and Antarctica. These are viewed as resources by the rival claimants, and their respective claims should be conceived of as property claims. The second part of the chapter deals with cases where there (...) are natural resources—oil, fertile land, water, coal—on land that is co-extensive with an area occupied by a group. It develops a middle ground between a strong resource rights conception, associated with current views of state sovereignty, and the cosmopolitan view that thinks of groups as having no special claims to resources within their midst, indeed thinking of it as a kind of undeserved advantage. (shrink)

In international human rights law ‘jurisdiction’ is the centre of the debate on extraterritorial obligations. The purpose of the present paper is to a) analyse how facts and principles contribute t...

In lieu of an abstract, here is a brief excerpt of the content:Human Rights and Women's RightsAngela KnobelMainstream feminists insist, with a degree of unanimity that is sometimes surprising, that access to abortion is an essential precondition of female equality. That feminism, which is in other respects so flexible, inclusive, and uncategorizable, should be so unyielding with respect to this particular issue seems surprising to many. It is especially surprising to those who, while sympathetic to other feminist goals, also (...) oppose abortion.1 Why is access to abortion so important? Why must one's views about the equality of women stand or fall on one's views about the value of unborn human life? If feminism has to have a flagship issue, why must that issue be abortion? In this paper, I will propose that Pierre Manent's Natural Law and Human Rights offers a possible answer to this question. I will argue that, to the extent that mainstream feminism assumes the truth of what Manent calls the "philosophy of human rights," it cannot not advocate abortion access. Similarly, I will argue that pro-life feminist attempts to defend the contrary position—namely, that abortion is antithetical to feminism—invariably assume the natural law that the philosophy of human rights rejects. My argument, if correct, suggests the pivot point in discussions of abortion and feminism occurs much further back than many acknowledge: in our very understanding of ourselves and our place in the world.In what follows I will first briefly summarize Manent's account of what he calls the "philosophy of human rights." With this background in place, [End Page 275] I will consider the mainstream feminist claim that access to abortion is a necessary precondition of female equality. When "equality" is understood through the lens of the philosophy of human rights, I argue, the mainstream feminist insistence on access to abortion becomes coherent: a feminism that assumes the truth of the philosophy of human rights cannot not insist on access to abortion. The pro-life feminist reply that abortion harms and oppresses women, by contrast, is coherent only to the extent one assumes the framework of natural law.2Natural Law or Human Rights?To believe in natural law is to believe that nature itself sets the standard for human life. What the "law" commands is simply action necessary for the realization of the potential implicit in our nature. Under such a framework, Manent notes, "natural inclinations and natural differences, if they exist, constitute a kind of language of nature."3 The fact that human beings are naturally rational or naturally social, or that biological males are (typically) attracted to biological women, helps provide insight into nature's "law": "Natural law issued commands in the name of a teaching implicit in human nature, in a tendency of human nature to society and to knowledge, or in a natural difference among ages, sexes, and capacities, a tendency or difference that reason once made explicit and on the basis of which it founded its commandments and recommendations."4 Nature's laws can be and frequently are violated: cultures or individuals can choose to live up to nature's laws or not. For this reason, Manent says that, under the traditional framework of natural law, human beings are "free under the law."5 Natural law is something we freely choose to follow or freely choose to reject, but because it stems from our human nature, it does not cease to bind even those who reject it.The philosophy of human rights, by contrast, accepts the notion of freedom but rejects the notion of any overarching "law" against which our free choices are to be measured. While the philosophy of natural law is rooted in the language of nature, and thus sees human beings as free "under the law" of nature, the philosophy of human rights puts freedom prior to [End Page 276] law and recognizes law only as a means of preserving freedom.6 While the philosophy of natural law understands individual human beings in terms of their human nature, and thus in terms of their natural inclinations and natural differences, the philosophy of human rights rejects the language of "nature" in favor of an "impoverished common denominator," namely equality... (shrink)

There is good evidence that many people harbour attitudes that conflict with those they endorse. In the language of social psychology, they seem to have implicit attitudes that conflict with their explicit beliefs. There has been a great deal of attention paid to the question whether agents like this are responsible for actions caused by their implicit attitudes, but much less to the question whether they can rightly be described as racist in virtue of harbouring them. In this (...) paper, I attempt to answer this question using three different standards, providing by the three dominant kinds of accounts of racism. I argue that on none of these accounts should agents like this be described as racists. However, it would be misleading to say, without qualification, that they are not racists. On none of these accounts are agents like this entirely off the hook. (shrink)

Is it possible to justify territorial rights? Provided a justification for territorial rights can be found, does it ground claims toparticularterritories? And provided a claim to particular territories can be justified, what kind of claim is it? Is it a claim to jurisdiction? A claim to control resources? A claim to control the movement of people across borders? In this paper I review some prominent accounts seeking to answer these questions. After outlining their main features, I focus on (...) some difficulties they encounter, in particular with regard to the justification of exclusion. (shrink)

The preservationist duties that conservationists would lay upon landowners to protect the natural environment obviously interfere with what those people do with their land. That is often taken to be an equally obvious ? albeit possibly justifiable ? violation of their rights in that property. But to say that, as landowners often do, would be to imply that property rights somehow embrace a ?right to destroy?. Closer inspection suggests that they do not. That would be a further right, (...) additional to and independent of all the component rights standardly associated with the right to private property. A right to destroy is implicit neither in the concept nor in the justifications of property rights, as they are standardly conceived. Conservationist policies cannot, therefore, properly be opposed on the grounds that they would necessarily violate people's property rights. (shrink)

There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article (...) considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law. (shrink)

The 3rd Report of the Special Representative of the Secretary-General of the United Nations appears to have generated significant consensus around its approach to business and human rights. This state of harmony relies mainly upon a narrow mandate limiting the endeavour largely to a mapping exercise. It also relies upon a process of 'operationalisation' that is yet to be undertaken despite the recent release of a 4th Report. After a brief presentation of the main parameters of the framework proposed (...) by the 3rd Report and of its precarious advantage over other similar initiatives, this article takes a close look at the main link that needs to be operationalised: i.e. the link between corporate responsibility for human rights and the concept of legal and criminal responsibility. The article then addresses the constitutive elements of the concept of responsibility to shed light upon the responsibility of business organisations in a human rights law context. It looks at the innovative ways in which the concept of corporate criminal responsibility has been dealt with in various domestic jurisdictions and at the new paradigms of corporate agency resulting in the process. Building on this inquiry, the analysis focusses on the way in which the legal discourse acquires new dimensions of corporate responsibility by moving away from an individualistic perspective. On the basis of this, the article suggests conceptual tools that can become instrumental in the process of the operationalisation of the 3rd Report, albeit at the likely cost of rendering the consensus around it more fragile. (shrink)

Book Information Multicultural Jurisdictions: Cultural Differences and Women's Rights. By Ayelet Shachar. Cambridge University Press. Cambridge. 2001. Pp. xiv + 193. Hardback, Aus.$140. Paperback, $48.95.

The Baltic States – Estonia, Lithuania and Latvia – are democratic states of law that respect human rights. As members of the Council of Europe, they implemented into domestic law the Convention on the Protection of Human Rights and Fundamental Freedoms (known as the European Convention on Human Rights) – an international document for the universal protection of human rights adopted by the Council of Europe. The aim of the paper is to analyze whether and to (...) what extent did Estonian, Lithuanian and Latvian citizens file individual complaints to the European Court of Human Rights over the past thirteen years (2006–2018). The paper is to answer the question if the Baltic Sates’ systems of human rights protection are effective. One of the indicators of effectiveness is the number of complaints brought from the Baltic States to the ECtHR in relation to the number of inhabitants and also in comparison with the total number of complaints from the 47 member states of the Council of Europe as whole. The analysis will cover statistics on the number of judgments in Estonian, Lithuanian and Latvian cases before the Court in Strasbourg issued between 2006 and 2018. This will be helpful in determining the degree and the type of violations by the Baltic States of the human rights protected by the European Convention on Human Rights. (shrink)

This chapter considers the extent to which the self-determination argument, which justifies a people in exercising jurisdictional authority over territory, can be extended to justify those people in exercising control over the flow of persons and goods across borders. It considers whether preventing people from entering a state is a violation of their rights to free movement and rights to subsistence. Whatever the legitimacy of the right to control borders, it has to be understood as at best (...) a qualified right, since it has to be pursued in ways consistent with basic human rights. Richer political communities, it is argued, have obligations to ensure that basic entitlements of people to live a decent life are met, even if that does not amount to a direct argument for open borders. (shrink)

The social licence to operate concept is little developed in the academic literature so far. Deployment of the term was made by the United National Guiding Principles on Business and Human Rights and the UN ‘Protect, Respect and Remedy’ Framework, which apply SLO as an argument for responsible business conduct, connecting to social expectations and bridging to public regulation. This UN guidance has had a significant bearing on how public regulators seek to influence business conduct beyond Human Rights (...) to broader Corporate Social Responsibility concerns. Drawing on examples of such public regulatory governance, this article explores and explains developments towards a juridification of CSR entailing efforts by public regulators to reach beyond jurisdictional and territorial limitations of conventional public law to address adverse effects of transnational economic activity. Through analysis of an expansion of law into the normative framing of what constitutes responsible business conduct, we demonstrate a process of juridification entailing a legal framing of social expectations of companies, a proliferation of law into the field of business ethics, and an increased regulation by law of social actors or processes. (shrink)

This review article discusses the conception of collective rights necessary to ground contemporary entrenchments of minority educational rights, Indigenous rights and collective bargaining rights, as discussed in Miodrag Jovanović’s book, Collective Rights: A Legal Theory. Jovanović argues for a role for value collectivism in elucidating a rationale for the entrenchment of rights held by what he conceives of as pre-legally existing groups with interests not reducible to those of their individual members. This approach can (...) offer an explanation for the entrenchment of minority educational rights and Indigenous rights. The article extols Jovanović’s attempt to grapple with an explanation for rights not explained within standard liberal theory, even in Will Kymlicka’s attempt to justify minority rights within liberalism. The review also critiques the argument offered by Jovanović. First, the review argues that a full-fledged adoption of value collectivism is not necessary to provide a justification for irreducibly collective rights and that the unnecessary adoption of such a theoretical construct may, in practical terms, work counter to the ongoing entrenchment of the rights it seeks to justify, thus becoming what it will categorize as a ‘self-threatening theory’. Second, the review argues that Jovanović’s stark division of rights held by pre-legally existing groups and legally constituted collective entities undermines his account’s ability to explain collective bargaining rights of trade unions that are entrenched in some jurisdictions. (shrink)

Abstract. There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand, are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand, are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This (...) article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law. (shrink)

This paper presents preliminary results of a survey experiment examining the effects of international illegality on public support for proposed public policies. It adds three specific dimensions to the existing literature. First, it tests whether the effects of international illegality differ depending on the international regime whose rules are violated, testing the effects of violations of both human rights and trade regimes. Second, it tests how far the involvement of international courts vary these effects. And third, it examines these (...) questions using parallel studies with UK and US respondents to test the robustness and generalisability of the relations identified. Results confirm that, across both jurisdictions, illegality under either trade or human rights regimes, and with or without the additional involvement of an international court, have a statistically significant negative effect of public support for a policy. They further identify a greater negative effect where an international court has confirmed this illegality, although this result is statistically significant in only one case. They do not identify any statistically significant difference in the support depressing effect of illegality under the trade regime compared to the human rights regime. (shrink)

The political problem John Locke inherited from Thomas Hobbes was to produce a theory of natural rights that would not preclude the possibility of entering peacefully into civil association. If political existence is grounded on an unmediated theory of natural right, where every individual has a natural right to whatever he or she conceives to be useful in assuring his or her preservation, and where there are no moral limits to what one's rights will justify, civil association cannot (...) come about without invoking the coercive power of absolute sovereign authority. The problem with that, Locke insisted, is that absolute political authority transforms citizens into slaves.To avoid the necessity for invoking Hobbesian absolutism, Locke needed philosophical evidence that, in the natural situation, man is limited by natural duties. Locke produces an idea of natural duty which relocates the source of man's identity as a person bearing rights in what might be called the labor of consciousness. For Locke, it is the labor of consciousness itself - i.e. the act of self-imputation and self-ownership implicit in self-consciousness - that connects self-interest with an assumption of responsibility, and that transforms natural right into a natural principle of morality which does not need the mediating authority of sovereign power or the legitimating authority of God. The result is, we do not need to draw on theological foundations or call upon natural law doctrines as moral substitutes for the Hobbesian sovereign in order to legitimate Locke's political philosophy. Unvarnished natural duty is, for Locke, enough to ground civil association. The result is a natural morality that enables humans to enter into conditions of community and mutual trust without enlisting the intervening authority of sovereign power. Das staatsphilosophische Problem, das Locke von Hobbes geerbt hatte, war das Problem, eine Theorie natürlicher Rechte zu formulieren, die dem friedlichen Übertritt in eine bürgerliche Gesellschaft nicht entgegensteht. Wenn die Existenz des Staates mit der unkritisiert bleibenden Vorstellung verbunden wird, jedem Individuum komme ein natürliches Recht auf alles zu, was es als für seine Selbsterhaltung nützlich erachtet, und außerdem die moralischen Grenzen, denen ein derartig umfassendes Recht unterliegt, ebenfalls nicht reflektiert werden, dann läßt sich eine bürgerliche Gesellschaft nicht ohne die zwingende Gewalt einer absolut souveränen Macht begründen. Das Problem eines solchen Konzepts, so betont Locke nachdrücklich, besteht darin, daß unter einer absoluten politischen Autorität Bürger zu Sklaven werden.Um einen Absolutismus Hobbes'scher Prägung zu vermeiden, mußte Locke den Beweis dafür führen, daß der Mensch im Naturzustand durch natürliche Pflichten gebunden ist. Dazu schuf er die Vorstellung von einer natürlichen Verpflichtung, die den Ursprung der Identität des Menschen als einer Person, die Rechte hat, auf etwas zurückführt, was als "Tätigkeit des Bewußtseins" bezeichnet werden könnte. Für Locke ist es die Tätigkeit des Bewußtseins, d.i. der im Selbstbewußtsein gegründete Akt, sich die eigenen Handlungen selbst zuzuschreiben, überhaupt der Akt der Inbesitznahme des eigenen Selbst, der das Eigeninteresse mit der Annahme von Verantwortlichkeit verknüpft und das natürliche Recht in ein natürliches Prinzip der Moralität verwandelt, das der regulierenden Autorität einer souveränen Gewalt oder der legitimierenden Autorität Gottes nicht mehr bedarf. Um Lockes politische Philosophie zu rechtfertigen, sind daher weder theologische Begründungen nötig noch Naturrechtsdoktrinen als moralischer Ersatz für den Hobbes'schen Souverän. Locke betrachtet die bloße natürliche Verpflichtung als hinreichend für die Begründung einer bürgerlichen Gesellschaft. Das Resultat ist eine natürliche Moralität, die Menschen erlaubt, sich ohne die Intervention einer souveränen Gewalt in einen Zustand der Gemeinschaft und des gegenseitigen Vertrauens zu begeben. (shrink)

Although the Lisbon Treaty maintained the general exclusion of Common Foreign and Security Policy (CFSP) matters from ECJ jurisdiction, it introduced a number of changes into this area, including an explicit statement that the Court is competent to review the legality of the Council decisions imposing restraining measures on persons. The article analyzes the nature and origin of those changes and considers the legal implications for the level of the protection of fundamental rights in the European Union. For this (...) purpose the author firstly considers the context of the exclusion of CFSP matters from the ECJ jurisdiction, including discussions on the issue at the European Convention, and, secondly, takes a closer look at the separate heads of jurisdiction over which the Court is competent to act after the entry into force of the Lisbon Treaty. A conclusion is made that the Lisbon Treaty did not introduce significant changes to ECJ jurisdiction. Similarly to the pattern of previous amendment treaties, the Lisbon Treaty again gave recognition to the practice of the ECJ on relevant questions. Nonetheless, the amendments made by the Lisbon Treaty should be welcome for introducing more clarity into the legal regulation of the matter, thus boosting the legal certainty and protection of fundamental rights in the European Union. (shrink)

The main aim of the article is to show that axiological and anthropological dimensions of human rights in the globalized world do not fit together. Such tension – between universally understood human rights and territorially perceived citizens’ rights – is unavoidable. By making the term “human” strictly biological people are being perceived not as members of a particular community but as members of the species. In the political paradigm these collectivities are distinguished by political rules, in the (...) biological paradigm they are perceived as natural. In this situation, from political perspective the life of the others (non-citizens) in effect ceases to be treated as a human life or as a life associated with any ethical requirements, because the normative dimension that metaphysics, religion or politics give to the notion of being human has been excluded. Hence, human rights cannot be enforced with the same effectiveness as the laws enforced in the area of state jurisdiction. They constitute an ethical norm by which the international community judges a given procedure, rather than an enforceable legal norm. In order to justify my reasoning, I will refer to the two philosophically important categories - space and border – that play an important role in understanding the processes of globalization that affect the legitimation and enforcement of human rights. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Human Dignity, Human Rights, and Religious Pluralism:Buddhist and Christian Perspectives1John D'Arcy MayThe question of how the concept of human rights—so crucially important for the implementation of justice in a rapidly globalizing world—relates to the plurality of cultures and religions has still not been solved. Controversies such as those over land rights in Aboriginal Australia and Asian values in Southeast Asia have shown this repeatedly. In such (...) cases, discussion eventually becomes focused on the universality of human rights, not just the global scope of the idea itself but the universal validity of catalogues of specific rights such as those contained in the United Nations' Universal Declaration of Human Rights (December 10, 1948). There is something arbitrary and unsystematic about such charters, as is shown by the rather different emphases in the African and Islamic documents which were meant to correct the UN's lack of universality.2 But if, in attempting to explore this problem seriously, one appears to tamper with the principle of universality, one can easily be accused of diluting the ethical force of human rights by questioning their applicability to every human being without exception. Nothing could be further from my mind, so before explaining what I wish to do in this paper I shall first set out some presuppositions that I take to be axiomatic:1. Our starting point is the dignity of the human, the unique value of each individual human life as a world constituted by consciousness, an originating source of free acts, which is therefore an end in itself and must never be misused as a means to other people's ends.3 This principle is reflected in formulations such as dignitas humana in the social teaching of the Catholic Church, which goes back to the biblical doctrine of the creation of human beings in the image of God, or in the unique status of the human being in the Buddhist scale of existence, on which neither animals nor gods but only humans are in a position to grasp the reality of their situation and strive for definitive release from the chain of becoming; hence the severity of the prohibition on taking human life as the third of the four cardinal offences (pārājika).42. The concept of "human rights" is one way of acknowledging this unique moral status of human dignity, in that rights accrue to the individual person [End Page 51] simply by virtue of his or her being rational, autonomous, and free. To this extent human rights language belongs within the Western tradition of liberal discourse, which lies at the heart of Western democracies and was profoundly influenced by Christianity. Conceptions of what it is that makes the human uniquely valuable, however, are very differently constructed in different cultural and religious traditions.53. What rights language tries to express in the conceptual framework provided by European culture has universal validity, although it is otherwise expressed in other cultures, for example, in terms of "duty," "obedience," "taboo," and so on. Problematic as it is in the context of postmodern discourse, the sameness-in-difference of the human as the criterion for rights everywhere and without exception is a categorical imperative on which the effectiveness of human rights as an instrument of justice depends.4. Conceptions of universality, however, may themselves be culturally determined and usually arise in contexts of domination: what is taken to be universally valid is often somebody's particular version of the truth of things which by virtue of a claim to universality is then imposed on others as "the" truth. Such conceptions are necessarily generalizations, whereas the moral impulse arises in the face-to-face encounter with the alien, unexpected and unwanted "other," as Levinas has shown.5. Universality is thus not available a priori but remains implicit in the intersubjectivity of human interaction until it is realized through shared practice and the negotiation of meanings; this applies all the more to interactions between religions and across cultures.66. Rights language, though a powerful instrument for the implementation of justice, is thus incomplete unless its Western (and Christian) conceptual presuppositions are complemented by the metaphors, stories, and... (shrink)

Is territorial jurisdiction over natural resources justified? This paper argues that a freedom-based account of self-determination coupled with ‘functionalist’ justifications of territorial right support territorial jurisdiction over natural resources. This justification simultaneously gives rise to limits on the permissible exercise of the right: the principles of reciprocity and generality, and of equal freedom. This ‘reciprocal’ view on territorial jurisdiction over natural resources, defended here, differs from two alternatives: the traditional sovereignty view on the one hand and the transnational jurisdiction view—which (...) favours the transfer of sovereignty over natural resources from states to transnational institutions—on the other hand. (shrink)

In this paper, I take issue with an idea that has emerged from recent relativist proposals, and, in particular, from Lasersohn, according to which the correct semantics for taste predicates must use contents that are functions of a judge parameter rather than implicit arguments lexically associated with such predicates. I argue that the relativist account and the contextualist implicit argument-account are, from the viewpoint of semantics, not much more than notational variants of one another. In other words, given (...) any sentence containing a taste predicate, and given any assignment of values to the relevant parameters, the two accounts predict the same truth value and are, in that sense, equivalent. I also look at possible reasons for preferring one account over the other. The phenomenon of "faultless disagreement" is often believed to be one such reason. I argue, against Kölbel and Lasersohn, that disagreement is never faultless: either the two parties genuinely disagree, hence if the one is right then the other is wrong, or the two parties are both right, but their apparent disagreement boils down to a misunderstanding. What is more, even if there were faultless disagreement, I argue that relativism would fail to account for it. The upshot of my paper, then, is to show that there is not much disagreement between a contextualist account that models the judge parameter as an implicit argument to the taste predicate, and a relativist account that models it as a parameter of the circumstances of evaluation. The choice between the two accounts, at least when talking about taste, is thus, to a large extent, a matter of taste. (shrink)

While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights (health, education, work and housing – all of them guided by the idea of human dignity). If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be juridical or factual. (...) Juridical liberty has no value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. In fact, they are subjective rights, but special ones: they are prima facie subjective rights, so that their rules present exceeding content and the determination of the definitive right is only possible in the concrete case. There is only one subjective right that is a priori considered definitive: the right to Existenzminimum. Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. So Existenzminimum represents what is essential to assure human dignity. It is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, besides the arguments referred above, the following ones have also arisen: (a) Juridification of politics; (b) Legal permission of administrative discretion; (c) Possible reserve clause. These are the counter-arguments: (a) Legislative and Executive Powers have the original competence, but Judiciary has the exceptional one; (b) It is not enough to state economical incapability of the State. It is necessary to prove it objectively; (c) Powers have discretion, but State’s will is not allowed; (d) Public administration is under the principles of legality and of non-obviation of Judiciary jurisdiction; (e) The Existenzminimun guarantee is untouchable, prevailing over any opposite allegation. (shrink)

The historical problem about the origins of the language of rights derives its importance from the conceptual problem: of "two fundamentally different ways of thinking about justice," which is basic? Is justice unitary or plural? This in turn opens up a problem about the moral status of human nature. A narrative of the origins of "rights" is an account of how and when a plural concept of justice comes to the fore, and will be based on the occurrence (...) of definite speech-forms—the occurrence of the plural noun in the sense of "legal properties." The history of this development is currently held to begin with the twelfth-century canonists. Later significant thresholds may be found in the fourteenth, sixteenth, and eighteenth centuries. Wolterstorff's attempt to find the implicit recognition of rights in the Scriptures depends very heavily on what he takes to be implied rather than on what is stated, and at best can establish a pre- history of rights-language. (shrink)

Davidovic asks what gives the international community the authority to punish some crimes? On one prominent view some crimes (genome, torture) are so heinous that the international community, so long as its procedures are fair, is justified in prosecuting them. Another view contends that heinousness alone is not enough to justify international prosecution: what is needed is an account of why the international community, in particular, has standing to hold the perpetrators to account. Davidovic raises concerns about both of these (...) views and then defends her own account. On her view, the heinousness of the crimes is relevant, but what makes these crimes the business of the international community is that the community in fact recognizes certain norms against especially heinous crimes. If the international community fails to prosecute and punish those who perpetrate these crimes, this impunity undermines the rule of law, and thereby hinders the maintenance of peace the the protection of human rights. (shrink)

It is commonly held that the idea of natural rights originated with the ancient Greeks, and was given full form by more modern philosophers such as John Locke, who believed that natural rights were apprehensible primarily to reason. The problem with this broad position is three-fold: first, it is predicated on the presumption that the idea of rights is modern, biologically speaking ; second, it makes it appear that reason and rights are integrally, even causally, linked; (...) finally, it legitimizes debate about just what rights might be, even in their most fundamental essence. In consequence, the most cherished presumptions of the West remain castles in the air, historically and philosophically speaking. This perceived weakness of foundation makes societies grounded on conceptions of natural right vulnerable to criticism and attack in the most dangerous of manners. Most of the bloodiest battles and moral catastrophes of the twentieth century were a consequence of disagreement between groups of people who had different rationally-derived notions of what exactly constituted an inalienable right . If natural rights are anything at all, therefore, they better be something more than mere rational constructions. The adoption of a much broader evolutionary/historical perspective with regards to the development of human individuality and society allows for the generation of a deep solution to this problem—one dependent on a transformation of ontology, much as moral vision. Such a solution grounds the concept of sovereignty and natural right back into the increasingly implicit and profoundly religious soil from which it originally emerged, and provides a rock-solid foundation for explicit Western claims for the innate dignity of man. (shrink)