Current Human Rights Research Articles

EU Law, Constitutional Identity, and Human Dignity: A Toxic Mix?

This paper examines the Bundesverfassungsgericht’s decision (BVerfG) in Mr R on the relationship between German constitutional law and EU law. The case concerned an extradition under the European Arrest Warrant (EAW) and the Court found a violation of human dignity as protected by the German constitution. Some creatures release toxins when threatened and as Paracelsus explained dosis sola facit venenum, the dose alone makes the poison. While this quote is related to toxicology, it is equally relevant to the judgment. The, therefore, paper first describes the relevant facts of the judgment and the threatening environment which may have contributed to this reaction of the Court. Then, the paper highlights the venomous qualities of the BVerfG’s judgment and how it effects the body of EU law. Finally, the treatment of mutual trust and acte clair will be analysed, before it will be shown that if used in the right dosage the judgment might help curing some illnesses of the current human rights protection in the EU.

The New Animal Rights

The Supreme Court has yet to define the outer boundary of Congresses’ authority to extend property rights to non-humans. In fact, the Court has repeatedly found that the Property Clause affords Congress nearly unfettered power to grant land and property rights to animals on public lands. Yet, because property is universally assumed to be exclusively human, no research to date has examined the legal and scientific rationale for extending property rights to animals. This Article fills this gap by linking the previously distinct fields of animal behavior and property law. Biological studies indicate that animals acquire, exclude, defend, and transfer territories. Indeed, species ranging from ants to orcas, prairie dogs to lions, exhibit behavior that forms the core doctrines of human ownership of property, distinguishable only with respect to alienation and recordation. Moreover, government and private actors alike have already created a vast network of functional property rights for animals.Building upon these observations, this Article presents a thought experiment of formalizing and extending customary property rights to non-human animals. Although implementation challenges may render a rights revolution ultimately impracticable, the exercise highlights the limitations of the current human rights approach to animal welfare. The human rights approach is compelling with regard to primates, but excludes many creatures. Moreover, it overlooks the connection between wildlife and habitat, which a property right approach more directly addresses. Considering the biological underpinnings of property also suggests the opportunity to revisit and reconceptualize the field of property. The animalistic nature of systems of property forces a fresh look into the relationship between property and fields to which it is frequently linked, such as government and morality. More concretely, the concept of animal property rights should encourage animal welfare advocates to consider pressing Congress to consider whether more expansive grants of public property to animals might advance objectives reflective of the desires of the American public.

Human Rights Duties towards Future Generations and the Potential for Achieving Climate Justice

Human rights-based approaches to climate change promise to address the intergenerational injustices of climate change by incorporating an enhanced consideration of the needs of future generations. Yet, a number of questions arise when one contemplates how international human rights law might accommodate the rights of persons as yet unborn. Among them are the theoretical questions of whether it is possible for future generations to possess human rights and for present generations to owe them corresponding duties. Assuming that such a theoretical conceptualisation is possible, a number of legal issues are present in attempting to protect the rights of future generations within current international human rights law, including the question of how the rights of future generations can be balanced against those of current generations. The paper will examine a number of domestic measures designed to protect the rights of future generations and consider how such mechanisms might contribute to a rights-based approach to resolving intergenerational climate injustice.

Ethical Universals in Amitav Ghosh’s Sea of Poppies: A Posthumanist Critique of Universal Human Rights

The debate on universality in current human rights scholarship has been overly limited. Commonly, the idea is either dismissed as Eurocentric or it is compared to a global political consensus. I evoke certain alternate and underexplored views on the topic from literary and culture studies. Scholars like Kwame Appiah, Patrick Hogan and Seyla Benhabib have articulated principles that include patterns of non-coercive ethical thinking emergent across diverse cultures, particularly the way minority cultures ethically respond to oppression. I argue that human rights practices may be fruitfully guided by the way minority cultures around the world evoke ethical universals to challenge violations. To develop this, I consider Amitav Ghosh’s novel Sea of Poppies that treats the issue of colonialism in South Asia during the 19th century. Ghosh foreshadows the arrival of human rights in two ways. He shows that a conception human rights has origins in Western colonialism, precisely in the colonial idea of civilizing mission. But more importantly, he demonstrates that ethical universals allow colonized characters in the novel to form cross-cultural solidarities that subvert colonialism through conceptions of universal human rights. This understanding of universality is largely missing in current human rights scholarship, with consequences that extend well beyond Ghosh’s novel.

Legal Capacity and Access to Justice: The Right to Participation in the CRPD

This article provides an applied analysis of Article 12 (Equal recognition before the law) of the Convention on the Rights of Persons with Disabilities (CRPD) and Article 13 (Access to justice) in the context of Article 6 (Women with disabilities). Recent literature on the CRPD has extended the analysis of Article 12 to consider its broader relevance for the interpretation of Article 13. The interaction between Article 12 and Article 13 is an emerging issue in CRPD debates. This article argues that the CRPD must be interpreted in light of current human rights theory. It provides a case study of the interaction between Article 12 and Article 13 based on the facts recited in the Court of Appeal case in the United Kingdom (RP v Nottingham City Council (2008)) and RP’s petition to the European Court of Human Rights (RP and Others v United Kingdom (2012)). The analysis shows that CRPD principles could and should have been applied in RP’s case. It concludes that current practices excluding people with disabilities from participation in legal proceedings are contrary to the CRPD.

Human Rights in Germany – A View from Germany's National Human Rights Institution

AbstractThis paper discusses the protection of human rights in Germany through the interplay of constitutional law and international human rights law. It also explores the relationship between specialized human rights treaties on the rights of women, children, and persons with disabilities with “general” human rights treaties and their added value. It will highlight current human rights issues, such as the treatment of refugees, the protection against racist discrimination, and the right to privacy in the digital age.

Thinking and caring about indigenous peoples’ human rights: Swedish students writing history beyond scholarly debate

According to national and international guidelines, schools should promote historical thinking and foster moral values. Scholars have debated, but not analysed in depth in practice, whether history education can and should hold a normative dimension. This study analyses current human rights education in two Swedish senior high school groups, in classes meant to promote what has been described as conflicting ideals of historical thinking and empathy as caring. Content analysis of students’ exam essays shows intertwined relationships between critical thinking and judgements. The results also highlight how students care that people are treated unjustly; can identify different perspectives; link the past to the present and the future; and use corroboration of information to get the best grade. This analysis shows that the students focus on historical empathy as caring rather than sourcing and corroboration. However, all students combine normative judgements with the complicated act of more neutral perspective recognition in their papers. Evidently, students may combine historical thinking and empathy as caring in line with recommendations of international understanding when they write history about indigenous peoples’ human rights. These findings are significant to all researchers, teachers and decision-makers interested in furthering analytical skills or moral values in education.

Antitrust and Socially Responsible Collaboration: A Chilling Combination?

Businesses are increasingly using collaboration to address concerns about sustainability, transparency, human rights, and labor conditions in global markets. Such collaborations include the development of certifications and standards, the sharing of information about factories and suppliers, and agreements to share facilities, like less than full delivery trucks. Yet at the same time, federal antitrust policies broadly prohibit agreements that restrain trade or commerce, creating the potential for innovative collaborations to result in legal prosecution. This article applies antitrust law to socially responsible and sustainable business collaboration in an effort to determine whether antitrust law chills potentially beneficial agreements. The article concludes that careful structuring of agreements can avoid many antitrust violations, but also finds that certain types of agreements, including those that could have the most impact on scarce resources and vulnerable commodity producers, are forbidden. Accordingly, this article argues that per se rules forbidding certain practices, including price fixing and resource sharing, be reconsidered in light of current economic and environmental conditions. It also questions certain assumptions about the benefits of competition in light of current environmental, human rights, and sustainability challenges.

The Right to Exclude, Human Rights,and Political Facts

AbstractIn this paper I will defend a limited right to exclusion. Legitimate states are entitled to refuse the entrance of unwanted immigrants, if necessary with force. However, I will also work out leverage points for a cosmopolitan critique of this view, one that starts with national borders as they are and constructs human rights conditionalities as they could be. In particular, I propose an immanent critique of Michael Blake’s jurisdictional theory of immigration. Blake gives a compelling argument that sovereign states have a prerogative to decide upon their own border policies, a prerogative that is only constrained by the international human rights regime. However, even if cosmopolitans accept this argument (which I think they should), they still have good reasons to expand the prevailing human rights regime in three respects: with regard to the classification of basic human rights, the domain of human rights obligations, and blind spots of the current human rights regime.

Current Human Rights Education for Psychiatrists Leaves Much to Be Desired

Current Human Rights Education for Psychiatrists Leaves Much to Be Desired

Do Islamic Succession Laws for Muslim Women Violate the Current Human Rights Framework? Developing an Ethical Working Model for Muslim Minority Nations

AbstractManaging the issue of a Muslim minority has been an important question for some Western democracies over the last 50 years, and different states have implemented varying frameworks to grant some sort of group autonomy to Muslim minorities in a show of support for diversity. In recent years, however, scholarly analysis of these frameworks has exposed some of the vulnerabilities women from Islamic minorities face when navigating personal status systems. This article explores some of those frameworks and the ways democratic nations grapple with the rights granted to women under a human rights agenda, and the conflicting tension between these rights and the rights of women in Islamic personal status law. This article will focus particularly on Islamic inheritance laws and the way these laws interact with the legal systems of India and the United Kingdom. Part I will address the conflict between theories of liberal multiculturalism and feminism, and discuss the common desire for Muslim minorities to exercise some sort of control in the areas of personal status laws (being marriage, divorce, custody and inheritance). Parts II and III seek to contextualize and outline women’s rights within both the general international human rights framework and the Islamic inheritance law framework. Parts IV and V will then explore the two different ways that India and the United Kingdom grant autonomy to Islamic minorities and address vulnerabilities women face in a human rights context. Analysis of these systems will show that it remains questionable whether they comply with each country’s international law obligations. Finally, Part VI of this article will outline a proposed working model drawing on Shachar’s intersectionist approach to recognize and prioritize the multiple identities of Muslim women and the necessity for inter and intra group dialogue in resolving tensions between minority rights and the rights granted to women within the human rights framework.

Nuevas perspectivas para la arqueología de la represión y la resistencia en el Brasil después de la Comisión Nacional de Verdad

The following paper discusses the importance of the Archaeology of Repression and Resistance in the current Brazilian human rights agenda. Also, itdiscusses if there are any perspectives that the demand ofarchaeological researches grows in the current scenario, after the ending of the works of the National Truth Comission (CNV in portuguese).

Classifying Cultural and Physical Destruction: Are Modern Historical and Current Human Rights Violations in China Violations of International Criminal Law?

Modern (Communist) China has a chequered history with regard to the commission of and accountability for mass violence and human rights violations. Campaigns by the Communist Party have resulted in horrific mass crimes such as killings, starvation, torture, beatings, and persecution. While such conduct undoubtedly amount to violations of human rights, there are many examples from China’s recent past and in China today where situations of mass human rights violations, as well as mass atrocities, could also constitute violations of international criminal law (war crimes, crimes against humanity or genocide). This paper will assess three examples in modern China’s history and present to determine whether they amount to international crimes: the Cultural Revolution, the 1989 Tiananmen Square Massacre, and human trafficking (including the consequential crimes of forced marriage and forced prostitution); and offer a brief overview of what accountability steps China should take with regard to these crimes.

Incorporating Human Rights: Lessons Learned, and Next Steps

The UN Guiding Principles mark the first time the international community has adopted a set of standards stipulating the obligations of states and the responsibilities of corporations in relation to business and human rights. They succeeded where previous such efforts failed. Critics believe it is because the Guiding Principles do not, in themselves, impose new legal obligations on states or businesses. This is a partial and therefore misleading answer. More to the point is that they broke through certain conventional conceptual and doctrinal shackles. These had contributed to past failures, and they would do so again if turned loose on future developments. Hence this chapter is divided into two parts: summarizing the premises underlying the Guiding Principles, and how to build on them in the current UN business and human rights treaty process.

Blind idealism in Ibsen's Brand

It has been 112 years since the last play was written by Henrik Ibsen, and he still lives on through his works as a modern dramatist. His plays cannot be set aside; even in our time, they demand to be studied more than ever before. Ibsen has been studied and performed all around the world, especially in Asia, where he speaks to the political and social needs of that part of the world. The combination of current political circumstances, social inequalities, and human rights has given his plays a special urgency in Asia. However, even though Ibsen has seen a particular resurgence in Asia and the Middle East, the terrible events of 22 July 2011 in Oslo and Utøya bear certain traces of Ibsen in his country of birth as well. A false hero, trumpeting himself as a true philosopher in a land in need of rescue, brings only chaos and destruction. Ibsen is considered, from one side, as an idealist whose heroes are divine for rescuing the society from their life-lie. On the other side, he is as a deflator of heroism and a derider of blind idealism. To the former, in his hypothetical society, there is a triangular form at the apex of which a leader stands to lead the masses up from the base. The question is raised here: how do Ibsen’s plays enlighten the debate on the contemporary socio-political issues? By applying historical approach along with contextual methodology, this study answers the above question. The significance of conducting this study on Ibsen’s plays is to know the response of his plays to the current political matters.

'Climate Change Migrants': Impediments to a Protection Framework and the Need to Incorporate Migration into Climate Change Adaptation Strategies

Despite the reality of climate change, no international agreement or protection framework exists to plan for or address the expected dramatic increase in migration. Current international refugee, environmental, and human rights law does not account for climate change-induced displacement and migration, creating legal gaps in protection. This article explores why these gaps persist and seeks to understand the barriers to a protection framework for climate change migrants. If improved protection is to be achieved, then a typology and assessment of the obstacles such an effort faces is a necessary first step. Accordingly, the analytical focus of this article is on the impediments to protection, including whether and how to define a category of ‘climate change migrants’, a lack of political will to create new protection obligations or to expand existing legal regimes, and the national security focus that dominates current climate change and migration discourse. Institutional capacity issues, the difficulty of linking climate change directly to migration, the causal complexity of climate change, and the limitations of civil society in its climate change advocacy further hinder protection efforts. To advance protection for those displaced or induced to migrate by the effects of climate change, however, the emphasis cannot remain exclusively on obstacles. Climate change presents an opportunity for local decision makers and the international community to plan for impacts, fulfil human rights obligations, and take action on behalf of those who are and will continue to be harmed by climate change. This article concludes by proposing a shift in primary focus from the national security of developed countries to the particular needs of migrant populations, which allows migration to be included in climate change adaptation strategies.

Human Rights Histories

This review article considers Samuel Moyn's book The Last Utopia: Human Rights in History in the context of recent trends in the writing of human rights history. A central debate among historians of human rights, in seeking to account for the genesis and spread of human rights, is how far current human rights practice demonstrates continuity or radical discontinuity with previous attempts to secure rights. Moyn's discontinuity thesis and the controversy surrounding it exemplify this debate. Whether Moyn is correct is important beyond the confines of human rights historiography, with implications for their meaning in law, as well as their political legitimacy. This review argues that Moyn's book ultimately fails to convince, for two broad reasons. First, a more balanced judgment would conclude that the history of human rights is both one of continuity and discontinuity. Second, and more importantly, Moyn fails to offer a convincing account of the normativity of human rights. Undertaking a history of human rights requires a deeper engagement with debates on the nature and validity of human rights than Moyn seems prepared to contemplate.

Winning and war crimes: what Eichmann in Jerusalem means for The Act of Killing

In order to complicate facile comparisons between Eichmann in Jerusalem and Joshua Oppenheimer’s The Act of Killing , this paper argues that each work can illuminate the other if they are examined by the gesture that organizes each: Arendt’s and Oppenheimer’s efforts to humanize their subjects. This approach allows us to understand the motivations driving each work: refining institutional memory for Arendt, agitating for official recognition of war crimes for Oppenheimer. Arendt’s commitment to taking Eichmann seriously is mirrored by Oppenheimer’s earnest engagement with individual perpetrators of the genocide that occurred in Indonesia in 1965–66. Because the regime that initiated these events is still in power, these perpetrators enjoy public admiration for their murderous pasts. Through this film, Oppenheimer is able to describe some of the costs of these unrecognized crimes against humanity–as well as the costs of ignoring an unpunished and so unapologetic regime. The film also reflexively highlights Eichmann in Jerusalem ’s continuing significance as a moment of profound resistance to official narratives that oversimplify the significance of crimes against humanity. Rather than collapsing either of these works into a catalogue of guilt, taking them in alongside each other highlights the demands of justice unique to each colossal infraction against the global community. Indeed, Arendt thought the Eichmann trial should have helped legitimate the idea of a global community and support an international judicial system capable of meting out justice across the borders of nation–states. But The Act of Killing demonstrates just how inadequate the safeguards meant to ensure such a process are–the film interrogates what kinds of community current international human rights laws are capable of supporting while imagining a new community in pursuit of justice.

Nationalism and Human Rights: In Theory and Practice in the Middle East, Central Europe, and the Asia-Pacific ed. by Grace Cheng (review)

Reviewed by: Nationalism and Human Rights: In Theory and Practice in the Middle East, Central Europe, and the Asia-Pacific ed. by Grace Cheng Kai Chen (bio) Nationalism and Human Rights: In Theory and Practice in the Middle East, Central Europe, and the Asia-Pacific ( Palgrave Macmillan , Grace Cheng ed., 2012 ), 193 pages, ISBN 978-0-230-33856-2 . Historically, each stakeholder may have its own legitimate concerns about human rights and nationalism, even if it denies the concerns of others. As a result, there is a gap between academic research and policy practice on human rights and nationalism. Nationalism and Human Rights seeks to fill this gap to some extent, expands the comprehension of the tensions between human rights and nationalism, and makes new arguments for future research. Based on empirical and normative case studies in Asia-Pacific, Central Europe and the Middle East, this edited volume of essays criticizes the cosmopolitan arguments of human rights and nationalism, explores the multifaceted tensions and interconnections between the two essential ideologies, and analyzes the extent to which human rights could be instrumentalized by the stakeholders that have different concerns on human rights and nationalism. This edited volume features nine chapters. In Chapter 1, Grace Cheng reviews the literature of nexus between human rights and nationalism and describes the contributions of the chapters. In Chapters 2 through 3, the contributors criticize the cosmopolitan mindset that a multiculturalism policy could promote community rather than cultural separatism, and highlights the tensions between specific groups (e.g., national parties) and states. Chapter 2, written by Beyza Ç. Tekin, examines the policy debates of the minority rights laws in Turkey, which securitize minority rights to a large extent. Chapter 3 by Troy Whitford focuses on immigration policies in Australia and analyzes how a white Australian nationalist organization called “National Action” stood firmly against the state’s multiculturalism immigration policy. In the following chapter, written from a feminist perspective, Lilian Abou-Tabickh reviews Palestinian women’s human rights in Israel, whose migration upon marriage is not recognized by academia and policy makers. At the same time, their human rights are restricted by the state’s discriminatory policies. Chapter 5 by Omar Dahbour criticizes how the conflicting ideas of rights claims (i.e., national self-determination and minority self-determination), and demonstrates fragments of power or cultural differences could probably intensify disputes and conflicts. In Chapter 6, Filiz Kartal suggests that cosmopolitan citizenship is problematic, which heavily relies on the cosmopolitan commitment of humanitarian interventions. In Kartal’s opinion this “undermines all of the promises of modern liberal citizenship.”1 Moreover, cosmopolitan citizenship ignores the fact that many countries are not willing to conduct humanitarian interventions. In Chapter 7, Cheng stresses the tensions between human rights and sovereignty, and points out that human rights should be protected in a transnational context. Mitch Avila, in Chapter 8 of this volume, considers that the current international human rights regime could hardly establish a proper order around the world. In Avila’s opinion, “a society of peoples would be just, not a collection of nation-states.”2 In other words, the people possess a “moral character” that could make global justice possible, which means “a people’s moral [End Page 685] character consists in the kinds of reasons that inform and influence its collective decision-making institutions.”3 This volume ends with Chapter 9 by Füsun Türkmen who makes critical remarks on the tensions between human rights and nationalism and argues that they still seem far apart, especially because nationalism “is by definition based upon a discriminatory approach to identity and . . . stands in opposition to human rights.”4 In my view, one of the most impressive chapters in this volume is Chapter 3, “All in the Name of Human Rights: A Historical Case Study on Australian Nationalism and Multiculturalism, 1980–1990.” In this chapter, Whitford’s arguments not only reveal the tensions between human rights and nationalism, but also give a profound analysis of the rationale beneath these tensions. First, “all parties exhibited an intolerance of the other side, even though they all claimed to be acting in the name of human rights.”5 This appears to be a key...

Research participation by people with intellectual disability and mental health issues: An examination of the processes of consent

Balancing the demands of research and ethics is always challenging, and even more so when recruiting vulnerable groups. Within the context of current legislation and international human rights declarations, it is strongly advocated that research can and must be undertaken with all recipients of health-care services. Research in the field of intellectual disability presents particular challenges in regards to consenting processes. This paper is a reflective overview and analysis of the complex processes undertaken, and events that occurred in gaining informed consent from people with intellectual disability to participate in a study exploring their experiences of being an inpatient in mental health hospitals within Aotearoa/New Zealand. A framework based on capacity, information, and voluntariness is presented, with excerpts from the field provided to explore consenting processes. The practical implications of the processes utilized are then discussed in order to stimulate debate regarding clearer and enhanced methods of gaining informed consent from people with intellectual disability.