Foundation Of Human Rights Research Articles

The role of CRPD in rethinking the subject of human rights

ABSTRACTThis study takes off from the critical ideas on the foundations of human rights, from the particular point of the subject of rights, and suggests that the United Nations Convention on the Rights of Persons with Disabilities (CRPD) has the potential to liberate the position of the human subject in human rights law, and therefore can act as a guidance in thinking about the current and future prospects of human rights and its underlying concepts. It is argued that by looking at the spirit and purpose of the CRPD, some embedded traditional concepts, namely human dignity and autonomy, can find a better meaning and purpose, by adopting a critical screening and by introducing a relatively new concept, namely vulnerability. The study will briefly refer to general criticism surrounding the idea of human rights, in particular relation to the issue of the ‘subject of rights’, in order to picture the theoretical environment where human rights of persons with disabilities are expected to appear. Departing from the point where criticisms leave us, CRPD’s approach to the human subject will enter the picture within the concepts of dignity, autonomy and vulnerability. Finally, the study will demonstrate the presence and interpretation of these concepts in the convention by targeting a specific article of the convention and present a final assessment between CRPD and contemporary human rights theory.

Democratic Legitimacy of International Human Rights Law: A Reply to Professor Rubenfeld

This article is a review of Professor Jed Rubenfeld’s article Unilateralism and Constitutionalism. The author deals with Rubenfeld's contention that human rights law is deeply undemocratic to the extent that they are sought to be universally validated. Is this argument tenable and if so, is universality of human rights a legal fiction? In answering these issues the author discusses several philosophical foundations of human rights.

Inherent Dignity, Contingent Dignity and Human Rights: Solving the Puzzle of the Protection of Dignity

Dignity is often invoked as the basis of human rights. The precise relation between dignity and human rights remains objectionably obscure, however, and many appeals to dignity seem little more than hand-waving, as critics have pointed out. This vagueness is potentially damning for contemporary human rights accounts, as it calls into question whether dignity can truly serve as the foundation of human rights. In order to defend the view that human rights are grounded in human dignity, this paper presents a novel analysis of dignity that elucidates how human rights can be derived from dignity. Arguing that neither contingent nor inherent conceptions of dignity can, on their own, account for human rights, it develops a conceptualisation of dignity that combines inherent and contingent features in a coherent fashion. This, in turn, is shown to provide us with the means to explain how human rights are both grounded in and protective of dignity. Showing that the inherent features of dignity always generate a claim to the contingent features of dignity, the paper demonstrates that human rights derive directly from the inherent features of dignity, whilst what they protect are the contingent features of dignity. The paper closes with a discussion of the advantages of conceptualising dignity in the manner proposed, explicating the connection between dignity and nobility.

Réplica a "Mis derechos y los derechos del otro. Reflexiones fenomenológicas en torno al problema del fundamento de los Derechos Humanos"

<p>Recibido: 28/06/2016 • Aceptado: 5/09/2015</p><p>Mi réplica se concentrará principalmente en la segunda parte de la presentación y en particular el último apartado, consagrado precisamente a la posibilidad de pensar los DDHH desde una perspectiva fenomenológica.</p><p><span><span><br /></span></span></p><p> </p><div><span><br /></span></div><p><span><span><br /></span></span></p>

Los derechos humanos más allá del eclipse de la razón

The problem of the foundation of human rights in times of «eclipse of reason» is more like an enigma than a philosophical reflection. Bobbio renounces the very possibility of a foundation of human rights, proposing that we limit ourselves to defending them and transferring the role of the thinker from the philosophical level to the political level. What has happened afterwards is enough to show that the reductive approach is not satisfactory and can even legitimize abuses and misunderstandings: a new philosophy of human rights is needed, and a new confidence in our reason.

Paul Ricœurs Suche nach einer Neubegründung der Menschenrechte und der Würde durch die Fähigkeiten und die Anwendung der phronèsis

Paul Ricoeur's Search for a New Foundation of Human Rights and Dignity by Means of the Capabilities and his Application of phronesis The aim of the following article is to reconstruct Paul Ricoeur's concepts of human rights and human dignity by exploring some little-known texts, and to exemplify how these concepts are connected to a specific philosophical conception of human being, which is grounded in a Dialectics between transcendence and incarnation, freedom and dependence, identity and difference, capability and fallibility (fragility). In doing so, I will argue that Ricoeur interprets human dignity, which he has never explicitly defined, through the prism of human capabilities, especially of the capability of being responsible. This interpretation allows him to take a differentiated position in the current bioethical debates on the rights of potential persons (Embrio) and to illustrate how the Aristotelian phronesis can be used in (bio)ethical cases where decisions are difficult to take.

Human Dignity: the Foundation of Human Rights and Religious Freedom

The concept of human dignity lies at the heart of many national and international conventions of human rights. This idea, based on man's rationality, can be found already in Greco-Roman Antiquity, was fully developed in Christianity, in its synthesis with the Biblical conception of man as image of God. With the secularization of the European mind from the 18th century onwards, the justification of human dignity becomes problematic. This most influential attempt to justify it by secular rationality came from Kant, who saw man’s dignity as deriving from his capacity for moral reasoning and from it came the notions of autonomy and equality. However, during the last two centuries, secularized cultures produced skeptical attitudes toward both the Judeo-Christian and Kantian concepts of the intrinsic dignity of man, which eventually paved the way for twentieth-century totalitarian-isms. After the horrors of Nazism, concerns about putting human rights in the centre of culture, politics and law compelled a search ―largely impossible― for a common idea of human dignity, shared by different philosophical traditions, both religious and secular. During the years after World War II, especially after the Second Vatican Council, there was a renewed discovery of human rights as based on human dignity by Catholicism, which, in view of the different reduc-tionist or destructive tendencies found in the secularized culture, perhaps is the most satisfactory approach. Finally, the problem of religious freedom is examined as a case study for further reflections on human dignity.

Foundations of Human Rights: Metaphysics, Essentialism, and Intuitionism

AbstractThis article addresses the philosophical foundations of human rights without recourse to religion or metaphysics. It begins with the requirements of a non-religious theory of human rights and then discusses Martha Nussbaum's capabilities approach. Because her account relies on intuition to play a major role, this article compares two intuitionists, Johannes Morsink and David Little, whose works address the moral intuitionism of those who drafted the Universal Declaration of Human Rights (UDHR) as well as the foundations of human rights more generally. It argues that Little's rational intuitionism represents the best possible intuitionist defense of human rights, yet there are important questions of moral growth and attention to context it must answer going forward.

Liao, S. Matthew. The Right to Be Loved.New York: Oxford University Press, 2015. Pp. 272. $45.00 (cloth).

Liao, S. Matthew. <i>The Right to Be Loved</i>.New York: Oxford University Press, 2015. Pp. 272. $45.00 (cloth).

All in the (Human) Family? Species Aristocratism in the Return of Human Dignity

Human dignity is making a comeback. The essay focuses on the story that this comeback of human dignity presupposes and recasts. In that story, the “human family” is portrayed in terms of aristocratic dignitas. The consequences are twofold: (1) human dignity is co-implicated with the de-animalization of the human being; (2) once de-animalization is introduced, the story of human dignity cultivates an aristocratic sense of elevation of the human over other species, or what I will call “species aristocratism.” The fact that a new kind of aristocratism based on species emerges from the story of human dignity should concern us, I suggest, because it not only confronts us with unintended consequences of relying on human dignity as the foundation of human rights but also invites us to rethink our contemporary egalitarian, democratic ethos, understood as aristocracy for all.

Prawo naturalne a prawa człowieka: stanowisko Bertholda Walda

The article presents Berthold Wald’s views on the foundations of human rights. The author shares the views of the German thinker that the basis of these laws is the natural law, which in modern culture is neglected, contributing to the errors of embodying human dignity and freedom. Wald, in the author’s view, in an original way shows the rational and universal nature of the vision of the natural law of Thomas Aquinas as a source of human rights. He emphasizes that in the experience of one’s self you can read both the truth about this law and human rights. This makes this concept sound convincing and understandable for everyone, regardless of their temporal, cultural or philosophical background. For Walt, as for Mieczyslaw A. Krąpiec, the subject of rights is every human being because of his personal dignity, understood in a classical way, that is justified in human nature and not in its own qualities. In his presentation of the position of the German thinker, the author of the article exposes and delineates certain themes: defining natural law as a source of human rights and experiencing one’s own self in all aspects concerned and showing the dignity of the person as the foundation of rights.

Otázky náboženské svobody ve vyjádřeních dvou posledních papežů

The article analyzes the expressions of Pope Benedict XVI and Pope Francis on the topic of religious freedom. It summarizes their main emphases and evaluates their attitudes. The pontificate of Pope Benedict XVI strongly supported human rights issues and religious freedom is therefore characteristic of this theme. This Pope focused on humanity and its dignity, emphasizing the transcendental foundation of human rights. Pope Francis places different emphases in this area, especially social and charity, in the context of current international relations and new forms of abuse and protection of religious freedom. The way he addresses contemporary secular society may also be a new impetus for discussion about freedom of conscience and religious freedom in search of a balance between fundamental human rights (e.g. freedom of speech vs. freedom of religion).

Dignity, Torture, and Human Rights

This paper focuses on a distinct puzzle for understanding the relationship between dignity and human rights. The puzzle is that dignity appears to enter human rights theory in two distinct roles: on the one hand, dignity is commonly pointed to as the foundation of human rights, i.e. that in virtue of which we have human rights. On the other hand, dignity is commonly pointed to as that which is at risk in a subset of human rights, paradigmatically torture. But how can dignity underpin all human rights, and yet only be at stake in very specific human rights violations? And if dignity is lost in torture, how can the tortured retain their human rights? In this paper I offer a solution to these puzzles, in the form of a new theory of dignity. On this new theory, an individual’s dignity can be constituted via either of two pathways: the agent’s own normative competencies, or the authority of her community. The former is what’s typically at stake in practices such as torture; it in virtue of the latter that we have human rights.

Global bioethics and human rights in an African context: A reformed theological discourse on global bioethics as a new human rights ethos

The 2005 UNESCO Universal Declaration of Bioethics and Human Rights (UDBHR) is specifically aimed at Africa and developing countries from other regions. The acceptance of this UNESCO instrument shows that global bioethics and human rights have become part of the bioethics discourse of today. It is clear that there is a certain affinity between human rights and bioethics, which makes such a link desirable. The value of this link lies in the fact that human rights facilitate a normative universal expansion of bioethical principles. The human rights framework provides bioethical principles with some authority and political influence, an instrument that can protect people in our broken context. Human rights practice and a reformed understanding of natural law both show that humanity can reach consensus on ethical principles such as those found in the UDBHR. Consensus on the theoretical foundation of human rights is not a prerequisite for the successful utilisation of these principles.

Environmental human rights as a battlefield: a grammar of political confrontation

To understand the role and scope of human rights in contemporary environmental debates, we believe it is more useful to focus on the actions of stakeholders rather than on the origin, nature or foundations of human rights. In order to develop such an account, we examine human rights in terms of a battlefield, a political space undergoing constant transformation and in which political conflict is expressed by continuous translation between networks of interactions. This process of translation, in turn, modifies the scope and understanding of environmental human rights. We then show, as an example, that the global debate on the human right to water, which developed at the beginning of the millennium, can be analysed in these terms. This is followed by an exploration of the specific areas of political confrontations that environmental human rights potentially open up, especially through Article 28 of the Universal Declaration of Human Rights. We conclude by identifying the necessary ambivalence surrounding the interpretation of human rights, understood as a battlefield.

Questioning Samuel Moyn’s Revisionist History of Human Rights

The foundations of human rights are a contested subject, including who influenced them and what they are. The historiography may be divided into two sides: the continuous history group and the recent origins group. The former consists of scholars who find that human rights began in much earlier time periods and evolved into today’s human rights regime. However, the latest trend is to argue against a progressive history. Samuel Moyn most popularly represents it in his books: The Last Utopia: Human Rights in History and Human Rights and the Uses of History . He claims that today’s human rights ideology arrived on the world stage de novo in 1977 with President Jimmy Carter’s inaugural address. This article demonstrates four weaknesses in Moyn’s findings calling into question the revisionist history.

A Dignified Meal: Negotiated Spaces in India’s School Meal Program

In human rights literature, human dignity is the foundation of human rights. Thus, scholarly literature has focused on rights to further enhance dignity. In this article, we argue that rights alone provide only a minimum of dignity. We examine India’s right to food legislation and its implementation in school meal programs. Based on our observations, we argue that discretion and negotiation are complementary institutional spaces that can be developed for the meaningful enjoyment of rights and thus dignity. The negotiations that take place between school management committees and schoolteachers determine the dignity of the midday meal by improving meal quality and nutritional content, infrastructural facilities, and working arrangements for the cooking and delivery of meals. The findings are based on a study of four schools in the states of Kerala and West Bengal and on a review of studies on the midday meal programs in other Indian states.

Os direitos humanos e o estado “natural” de fundamentação dos direitos

This article intends to identify the metaphysical roots of projects of the foundation of human rights which incorporated genetically the doctrines of natural rights and call for an individual and anterior state to life in society to justify rights that not positivized in law. Based on the contractarian model of thinkers like Thomas Hobbes, the present article investigates the notion of contained behind the laws governing the natural state of men while questioning the methodological assumption of the individual - the free and rational human being - to legitimize the formulation of moral judgments and, especially, the enunciation of rights as human rights. The paper intended to show, in the end, that it makes no sense to approach human rights from the traditional notion of nature, as human nature is constituted from a collective context, and not from the individual - although the contemporary discussion about human rights is completely contaminated by the metaphysics of natural rights.

Direitos Humanos, Anti-Metafísica e Humanismo Jurídico

Discute os direitos humanos em seu cerne filosófico e ético, aponta seu melhor enquadramento seu diante dos influxos anti-metafísicos da pós-modernidade. Objetiva, de modo geral, explanar o atual quadro de conceituação e de fundamentação dos direitos humanos segundo as premissas históricas do humanismo jurídico. Objetiva, especificamente, discorrer sobre a evolução histórica dos direitos humanos, fornecendo os elementos básicos de seus fundamentos filosóficos até a pós-modernidade; e analisar a estrutura da entificação metafísica na concepção do ser do homem e como isso se reflete na interpretação dos direitos humanos. Metodologicamente, utiliza-se da analítica-existencial de Martin Heidegger aplicada à construção teórica do humanismo jurídico anti-metafísico. Observa, como resultado, que ainda há uma grande lacuna filosófica a ser colmatada nas perspectivas éticas e ontológicas dos direitos humanos. Conclui ser necessário um estudo filosófico mais aprofundado sobre o tema, para que suas bases éticas e sociais sejam mais bem estabelecidas no plano jurídico-normativo.

Introduction: Global Human Rights Law and the Boundaries of Statehood

Whatever the true historical origins and philosophical foundations of human rights—questions to which the contributors to this collection of essays give different answers—their protection has taken a distinctive form in the modern state legal order and, by extension, in the state-centered conception of international law. Arguing from a historical perspective, Samuel Moyn contends that, from American and French Declarations of the “Rights of Man” to the Universal Declaration of Human Rights, the main purpose of human rights was to organize and legitimize the social compact between the state and its citizens.1 If, in the course of the eighteenth century revolutions, the “rights of man” were proclaimed as universal principles to which positive law was supposed to conform, these rights “only appeared through the state, and there was no forum above it, or at times even in it, in which to indict the state’s transgression.”2 Human rights retained their state-centered focus with their appearance on the international stage after World War II, now in the form of international declarations and covenants established by and for independent states endowed with sovereign equality and national collective self-determination.3 The global expansion of human rights in this period thus reaffirmed, rather than undermined, the central role of the state in their creation, interpretation, and enforcement. As Marti Koskenniemi says, “[b]y establishing and consenting to human rights limitations on their own