Positive Human Rights Research Articles

Building tolerance through human rights education: The missing link

Human rights education (HRE) is an emerging practice across formal and informal educational sectors worldwide. However, most literature and theory on HRE emphasize the importance of imparting knowledge about human rights. In this paper, we argue that increasing tolerance among students is a vital but understudied aspect of HRE. This paper is based on the results of a mixed methods longitudinal study conducted in three classrooms across two New York City public high schools. Our methods include a pre-/post- survey, classroom observations, and semi-structured individual and group interviews. The findings indicate that merely teaching about human rights issues is necessary but not sufficient to shift deeply embedded attitudes that contribute to the transformative nature of the human rights framework. We present tolerance as a necessary precursor to positive social change and sustainable human rights implementation.

Commentary on a “unified approach to behaviours that challenge”: against consensus – why we need a new field of challenging behaviour studies

PurposeThis paper challenges the value of consensus within the field of learning disability. In this commentary, the author argues that consensus threatens to silence multiple viewpoints, hides how power operates and stifles creativity.Design/methodology/approachThe author focuses on two articles within this special issue to suggest that the consensus celebrated is more about a set of shared values, rather than a set of shared practices. This should make us question the depth of the field’s consensus.FindingsThe presumption that multiple paradigms can be “unified” actually hides how power operates to resolve disagreements among positive behaviour support, active support and human rights approaches. A similar erasure occurs in the language of “capable environments,” which the author argues obscures the role of individuals, relationships and organizational cultures in impacting quality of life.Research limitations/implicationsWe need to create and build a new interdisciplinary field of challenging behaviour studies that is willing to embrace conflict and disagreement in research, policy and practice.Practical implicationsThe author believes that this approach is more likely to empower people, including people with learning disabilities whose behaviour challenges, family members, and direct support workers because it is more likely to recognize their experiences and expertise.Originality/valueA new multidisciplinary field of challenging behaviour studies may encourage more theoretical diversity that makes us challenge the value of consensus and embrace creativity.

Human Rights Universalism in Practice: What the Iranian Women’s Rights Movement Can Teach Us

Abstract Does practice demonstrate the legitimacy of international human rights law? This article explores this question via a case study of the women’s rights movement in Iran. Current human rights sceptics question the system’s legitimacy because of a lack of universality and an excessive top-down approach. However, the Islamic Republic of Iran has a remarkable community of grassroots activists. The bottom-up women’s rights initiative of the One Million Signatures Campaign utilised human rights discourse in combination with local, indigenous values in pursuit of gender equality. The article argues—via the case study of this movement—that there is practical evidence to support a theory of human rights universalism, as positive human rights law empowers the existing subjectivity of individuals. The universal legitimacy of international human rights law does not primarily come from a global network dictating common values, but from members of civil society mobilising their status as rights holders.

Handling Facebook: social media in the light of human rights violations

International justice does not remain on the sidelines from the intensive development of social media: the data stored on the social media possesses great evidentiary value in international courts. The dispute over the disclosure of information by Facebook for use in the Gambia v. Myanmar dispute before the International Court of Justice raises a broader issue of the international legal status of telecommunications companies, obligations of companies and states in relation to the use of social media for human rights violations and commission of international crimes. The article assesses the existing international legal regime of human rights obligations of global social media corporations, as well as their role in administration of international justice, by examining the case of the use of Facebook disseminating hate speech and inciting violence against the discriminated group of Rohingya in Myanmar. The authors analyze the report of the Independent International Fact-Finding Mission on Myanmar, Facebook’s reaction to the information of its influence on the situation with Rohingya, and measures taken by the company to reduce the negative impact of its business activity on human rights. The article draws attention to the inconsistent position of Facebook with regard to facilitating the investigation of violations of international law committed through the social media. In particular, the authors comment on the dispute between the Gambia and Facebook before the U.S. Courts arising from the request on disclosure of materials forming evidence in the case of the Gambia v. Myanmar, and lack of action from the US with respect to human rights violations and genocide committed with resources of the US-based social media company. The authors underscore the uncertainty of international legal regulation that impedes effective international investigations of serious human rights violations. Non-state actors remain outside the reach of international justice and international accountability mechanisms, especially when they operate in jurisdictions of states that ignore their positive human rights obligations. The authors conclude that it is necessary to develop effective mechanisms for cooperation and accountability of social media corporations in the field of international justice, as they play an increasing role in the investigation of serious violations of human rights.

The Unintended Consequences of the Goldstone Commission of Inquiry on Human Rights Organizations in Israel

Abstract Scholarly writings on internationally constituted commissions of inquiry (COIs), as outlined in the introduction to this symposium, give inadequate attention to the effects that they might have on local disputes that these bodies are often created to address. The United Nations Fact-Finding Mission on the Gaza Conflict (2009), popularly known as the Goldstone Commission, had unintended and unforeseen consequences at the domestic level. Specifically, the Commission caused a severe backlash against human rights organizations in Israel (IsHROs). This article analyses the backlash against the Commission and the effect of that backlash on human rights organizations and human rights advocacy in Israel and the Occupied Palestinian Territory in the first few years after the release of the Goldstone report. This case study reveals how a government can use a COI intervention in an ongoing conflict to deflect criticism against it and to delegitimize local human rights organizations and, as a result, to intensify enemy–friend dynamics within a conflict. The findings of this case study thus challenge the assumption of much of the socio-legal literature that the interaction of international human rights institutions with domestic actors leads to positive human rights change. But the case study also adds a new dimension to the academic and policy literature that has been critical of the international human rights enterprise in recent years. Despite delegitimization campaigns, international funding has increased for many IsHROs, and, eventually, some groups have become even more visible and have enjoyed, internationally, a higher reputation and greater credibility. The Commission’s experience thus demonstrates that the establishment of COIs in deeply divided conflict societies can have negative, as well as positive, implications on human rights.

A Non-positivistic Concept of Constitutional Rights

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights.

Through a Glass, Darkly: Three Important Conversations for Human Rights Professionals

AbstractThe current moment in history is marked by a sense of anxiety about the future of human rights as a global project. In many instances, human rights pessimism has eclipsed a larger empirical picture of human rights progress. In assessing this paradox of perception, I argue that human rights professionals themselves contribute to this sense of pessimism and crisis in ways that can become counterproductive and demobilizing. Promoting a more positive and balanced human rights vision reflecting both progress and challenges will require several shifts in emphasis over the coming years, beginning with some neglected conversations for the broader field of human rights. These conversations relate to (1) an assessment of the ways in which the prism of professional experience has shaped the messaging and world view of human rights advocates; (2) the role of human rights critics in promoting new thinking and reform; and (3) the need for advocates to go beyond what I call the ‘legalistic referee model’ in their attempts to promote positive change.

Due Diligence versus Positive Obligations: Critical Reflections on the Council of Europe Convention on Violence against Women

Article 5 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) enshrines the standard of due diligence to frame states’ obligations. In the existing literature in the area of violence against women, the standard of due diligence has been uncritically endorsed; the reason being that it has played a crucial role in the recognition of the violence as a human rights violation. This chapter offers a different and more critical perspective. It is an in-debt inquiry as to the meaning of the due diligence standard, its limits and any reasons to be cautious about it. It asks the question whether there any peculiarities as to how it has been framed in the Istanbul Convention, which could be a reason for concern. I clarify that in general the European Court of Human Rights does not use the concept of due diligence; rather, violence against women can trigger states’ positive human rights obligations. I show that not all positive obligations are obligations of due diligence. Better sensitivity as to the divergences and their implications is called for. Such a sensitivity is absent in the existing literature, where currently a confusion reigns. I argue that it is doubtful whether the reference to due diligence adds any concreteness; rather, this reference obscures. This chapter is an attempt to disentangle and better understand the relationship between due diligence and positive obligations in human rights law. A meaningful effort to juxtapose the two frameworks (due diligence versus positive obligations) requires a better understanding of each one of them, which is also offered. The main argument is that it is important to be sensitive of the nuances and differences between the two frameworks. A general references to the due diligence standard, as can be found in Article 5 of the Istanbul Convention, poses the danger of ignoring these nuances. (Less)

Enabling an Evidence-Based Approach to Policing Football in the UK

Abstract Across the last 10 years, the policing of demonstrations in the UK has witnessed substantive change in terms of both statutory guidance and operational practices. With this study, we highlight how the policing of football crowds in the UK has, to date, yet to undergo similar change, despite being covered by the same statutory guidance. On the basis of largely qualitative data and analysis generated through a quasi-ethnographic approach, we explore the dynamics of police football crowd interactions. We identify how current approaches can fail to adequately understand the nature of risk and lead to a disproportionate deployment of resources both of which have the potential to increase rather than reduce the risk of disorder. We propose that forces develop and test innovative approaches to football policing that are engrained in existing public order guidance, but which move away from a reliance upon fixed categories of risk, focus more on the positive human rights of supporters, and prioritize the tactical deployment of bespoke resources to improve dialogue with fans.

Regulated Legalization of Cannabis through Positive Human Rights Obligations and Inter se Treaty Modification

Abstract Although the UN narcotic drugs conventions do not allow states parties to legalize cannabis cultivation and trade for recreational use, there are possibilities for states to do so anyhow while staying within the boundaries of international public law. A first option concerns positive human rights obligations, i.e. obligations that require states to take measures in order to offer the best protection of human rights. If a state convincingly argues that with cannabis regulation positive human rights obligations to protect society can be more effectively achieved than under a prohibitive approach, the priority position of human rights obligations over the drugs conventions can justify such regulation. The second option regards the modification of the drugs conventions through an inter se agreement on cannabis regulation between certain of the states parties only. The positive human rights approach and the inter se possibility can strengthen each other and are a supreme combination.

Through a Glass, Darkly: Three Important Conversations for Human Rights Professionals

The current moment in history is marked by a sense of anxiety about the future of human rights as a global project. In many instances, human rights pessimism has eclipsed a larger empirical picture of human rights progress. In assessing this paradox of perception, I argue that human rights professionals themselves contribute to this sense of pessimism and crisis in ways that can become counterproductive and demobilizing. Promoting a more positive and balanced human rights vision reflecting both progress and challenges will require several shifts in emphasis over the coming decade, beginning with some neglected conversations for the broader field of human rights. These conversations relate to (1) an assessment of the ways in which professional experience has shaped the messaging and worldview of human rights advocates; (2) the role of human rights critics in promoting new thinking and reform; and (3) the need for advocates to go beyond what I call the ‘legalistic referee model’ in their attempts to promote positive change.

A praxis-based understanding of new duty bearers examining contextual realities in the DRC

ABSTRACTThe debate about legal accountability for human rights is routinely conducted from a legalistic or institutional point of view, which often leads to the conclusion that there is no legal ground for expanding the notion of duty bearers. In this article, we ask whether disenfranchised rights holders themselves are supportive of a broader understanding of duty bearers. We assess the nature of the local discourse on duty bearers in several villages in the Kongo Central province of the Democratic Republic of Congo and analyse this understanding in light of the discussion at the international level. In doing so, we supplement the legal-conceptual discussion on duty bearers with new empirical material in an effort to build global norms on local human rights understandings and to render the human rights discourse more relevant for local rights holders. We argue that there is local support for extending the notion of ‘duty bearer’ to non-state actors in this case, and that the case underlines the need for an integrated multiple duty-bearer framework. At the same time, we warn of pitfalls in the local understanding, which portrays non-state actors’ obligations as an alternative to state obligations and accountability, which risks letting the state off the hook. This risk is exacerbated by the current non-existence of hard law regulating the negative and positive human rights obligations of new duty bearers.

Forget Your Right to Work: Detroit and the Demise of Workers' Rights

A selective excavation of labor history (United States and global) and analysis of recent worker experiences in Detroit's bankruptcy expose the conflict of that shapes the US capitalist society. Masked by myths, forbidden memories, and selective values, the trumpeting of rights in the United States today weakens workers' claims to rights, denying many an existence worthy of human dignity (UN Universal Declaration of Human Rights). Thirty years ago, the National Conference of Catholic Bishops' Economic Justice for All called for a New American Experiment establishing positive economic human rights. Today, the problems they identified have worsened, and the conversion they called for is absent from dominant political and economic discourse. The survival strategies of marginalized communities suggest a praxis of conversion creating possibilities for a future of human dignity.

Transnational Corporations and Human Rights Duties: Perfect and Imperfect

This paper aims, firstly, to bridge debates on human rights and Transnational Corporations (TNCs) within practical philosophy and those within the business and human rights literature and, secondly, to determine the extent to which human rights duties can be assigned to TNCs. To justifiably assign human rights duties to TNCs, it is argued that these duties need to be grounded in moral theory. Through assessment of two approaches from practical philosophy, it is argued that positive duties cannot be assigned to TNCs because their bindingness cannot be grounded in moral theory. A positive argument is introduced to interpret TNCs’ human rights duties as corresponding to virtues rather than rights. Though such duties are indeterminate regarding what constitutes adequate performance, they can be made more determinate through legal instruments outside of positive human rights law. An approach is introduced exemplifying how such approaches can achieve the end of TNCs compliance with human rights norms.

Somali Piracy and the Human Rights of Seafarers

Somali piracy has attracted the world's attention over the last decade and whilst Somali piracy abates, the debate on its various aspects remains lively. This paper aims to shed light on one particular aspect of Somali piracy that remains unexplored – the violations of the human rights of seafarers, and especially those taken hostage. Despite the suffering of seafarers at the hands of pirates, their protection seems to fall beyond the human rights framework due to the non-State status of pirates. The lack of a human rights-oriented approach is reflected by significant counter-piracy responses, including the United Nations Security Council Resolutions, criminal responses and the conduct of naval operations that are reviewed here. Therefore, it is suggested that the traditional negative obligations of States and the evolution of the positive human rights obligations of States can offer a legal avenue for the better protection of the human rights of seafarers.

Children's rights in a risk society: the case of schooling in Japan

The purpose of this paper is to examine the ongoing discourse on children's rights and related attitudes towards individualisation and risk in contemporary Japan's education system. The paper is also interested in how this discourse is translated into concrete change. The concepts of ‘children's rights’ and ‘risk society’ both have their origins in Western conceptions of the relationship between the individual and society, and the place of children and young people in that society. This paper explores the way that these concepts have been transformed by their adoption into domestic Japanese discourse on education reform. After a discussion of how the classical liberal concepts of positive and negative human rights can be applied to the specific case of children's rights, the discussion moves on to show how this debate has developed in Japan since the 1980s. Then the paradigm of the ‘Risk Society’ is introduced and the concepts of ‘positive risks’ and ‘negative risks’ are explored, first with reference to schooling in Western countries and then in relation to Japan. Finally, the relationship between risk, rights and neoliberalism is discussed, and it is shown how Western notions of individualisation have met strong resistance from various actors on both sides of the political spectrum. In the case of the Japanese education system, the shift of responsibility from state bureaucracies to individuals and private-sector organisations that is predicted by Risk Society theory has only partially taken place.

Experience and lessons from health impact assessment for human rights impact assessment.

As globalisation has opened remote parts of the world to foreign investment, global leaders at the United Nations and beyond have called on multinational companies to foresee and mitigate negative impacts on the communities surrounding their overseas operations. This movement towards corporate impact assessment began with a push for environmental and social inquiries. It has been followed by demands for more detailed assessments, including health and human rights. In the policy world the two have been joined as a right-to-health impact assessment. In the corporate world, the right-to-health approach fulfils neither managers’ need to comprehensively understand impacts of a project, nor rightsholders’ need to know that the full suite of their human rights will be safe from violation. Despite the limitations of a right-to-health tool for companies, integration of health into human rights provides numerous potential benefits to companies and the communities they affect. Here, a detailed health analysis through the human rights lens is carried out, drawing on a case study from the United Republic of Tanzania. This paper examines the positive and negative health and human rights impacts of a corporate operation in a low-income setting, as viewed through the human rights lens, considering observations on the added value of the approach. It explores the relationship between health impact assessment (HIA) and human rights impact assessment (HRIA). First, it considers the ways in which HIA, as a study directly concerned with human welfare, is a more appropriate guide than environmental or social impact assessment for evaluating human rights impacts. Second, it considers the contributions HRIA can make to HIA, by viewing determinants of health not as direct versus indirect, but as interrelated.

Positive Duties and Human Rights: Challenges, Opportunities and Conceptual Necessities

Can human rights impose positive duties to act, as well as negative duties constraining action? At first glance there seem to be strong reasons for wishing human rights could impose positive duties – such reasons include the promotion of welfare rights and the positive protection of liberty rights (e.g. police protection against assault). However, any attempt to construct rights-based positive duties threatens to dissolve hallmark features of rights. In this article the duty-properties possessed by uncontroversial rights-based negative duties are comprehensively analysed. Drawing on this analysis, a range of key properties is developed, including ‘regime-level right-holder universality’ and ‘many-to-one directedness’, as well as a ‘centres of pressure’ vision of rights, by which it is argued that positive duties can accord with the keystone commitments of rights-based moral theories. In so doing, a conceptual space for rights-based positive duties is defended.

Examining the rights of children with intellectual disability in South Africa: Children's perspectives

Background Human rights provide fundamental conditions for people to maintain dignity and self-determination and protect a nation's most vulnerable citizens. In South Africa, children with intellectual disability who experience socioeconomic disadvantage may be particularly vulnerable due to their cognitive impairments and inability to garner needed resources.Method The perceptions of children with intellectual disability regarding their access to basic amenities in their home environments were examined to determine whether their positive human rights were met. Risk factors were examined in relation to these perceptions.Results The results suggested that participants generally reported high degrees of access to basic resources. Logistic regressions suggested socioeconomic risk factors (e.g., income, education, household size, relationship status) were negatively related to children's reports of access to food and their own beds and positively related to having someone available to explain confusing concepts to them.Conclusions The positive human rights of children living in high-risk environments should be monitored to ensure all South Africans have their rights met.

Assessing human rights impacts in corporate development projects

Human rights impact assessment (HRIA) is a process for systematically identifying, predicting and responding to the potential impact on human rights of a business operation, capital project, government policy or trade agreement. Traditionally, it has been conducted as a desktop exercise to predict the effects of trade agreements and government policies on individuals and communities. In line with a growing call for multinational corporations to ensure they do not violate human rights in their activities, HRIA is increasingly incorporated into the standard suite of corporate development project impact assessments. In this context, the policy world's non-structured, desk-based approaches to HRIA are insufficient. Although a number of corporations have commissioned and conducted HRIA, no broadly accepted and validated assessment tool is currently available. The lack of standardisation has complicated efforts to evaluate the effectiveness of HRIA as a risk mitigation tool, and has caused confusion in the corporate world regarding company duties. Hence, clarification is needed. The objectives of this paper are (i) to describe an HRIA methodology, (ii) to provide a rationale for its components and design, and (iii) to illustrate implementation of HRIA using the methodology in two selected corporate development projects—a uranium mine in Malawi and a tree farm in Tanzania. We found that as a prognostic tool, HRIA could examine potential positive and negative human rights impacts and provide effective recommendations for mitigation. However, longer-term monitoring revealed that recommendations were unevenly implemented, dependent on market conditions and personnel movements. This instability in the approach to human rights suggests a need for on-going monitoring and surveillance.