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Human Rights and Globalization Summary
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Human Rights and GlobalizationSession 1 Human Rights Law: introduction, history, development and sources
History
It is a challenging task of determining the starting point for the analysis of the history of
human rights. It suggests that one could trace back several thousand years to ancient
civilizations, religious codes, or the concept of natural rights during the time of the Greek
city-states and Stoic Philosophy. Human rights have diverse origins, and it focuses on the
legal measures related to human rights, particularly in the Western world. There are some
big events:
- Magna Carta (1215): it is often considered a starting point, the book argues that ti ws
more about securing rights of powerful barons than establishing rights for the
common person. Nevertheless, its enduring significance lies in being viewed as the
beginning of limiting absolute and arbitrary power of the sovereign.
- Establishment English Bill of Rights (1689): it did introduce some defined rights, such
as protection against 'cruel and unusual punishments'. The significance of the Bill of
Rights lay in confirming the idea that the state's absolute power should be limited for
the well-being of individuals.
- US Declaration of Independence + Virginia Declaration of Rights (1776)
- French Declaration of the Rights of Man and Citizen + US Constitution (1789)
- US Bill of Rights (1791)
Hobbes: He argued for absolute power as essential to prevent societal disorder. He justified
potential abuses by the ruler as a necessary trade-off for societal order. He introduced the
concept of the 'social contract', suggesting that governing power derived partly from the
consent of the governed.
Locke: Expanded the concept of Hobbes. He emphasized the natural liberty and equality of
human beings. Every individual is born with the rights to freedom and enjoyment of natural
law rights. He argued that individuals have the natural power to preserve their property.
Locke laid the groundwork for modern democratic governance!
The French Declaration of the Right of Man and Citizen and the Bill of Rights are a
significant starting point for studying human rights today.
Criticism:
- Bentham: The concept of natural rights faced criticism by Bentham. He argued that
natural rights were meaningless without the protection of the law. He believed that
embracing natural rights could lead to social upheaval
- Karl Marx: He argued that the French Declaration asserted that the rights of man
primarily favored the bourgeoisie. It did not liberate individuals.
,After the Second-World War
- (1942) Declaration of the UN
- Tribunal focused on crimes such as war of aggression, war crimes, and crimes
against humanity. It introduced the idea of international human rights law
- (1945) The UN Charter
- (1948) The Universal Declaration of Human Rights
- (1949) Four Geneva Conventions
- (1976) ICCPR and ICESCR enter into force
Foundations
Justification → giving reasons for human rights
The search for the moral justification of human rights remains distinct from that of the
legitimacy of international human rights law. It does not amount to explaining the sources of
human rights and it does not equate with their history.
Why should we care about justifying human rights?
1. Human rights protect interests deemed important enough to generate corresponding
duties. They serve as grounds for reasons for action.
2. The legality of human rights underscores the need for justification.
3. International human rights law explicitly acknowledges the independent existence of
various moral justifications for human rights, primarly found in the preamble to human
rights instruments.
Human rights can be understood as:
- Rights: The practice of international human rights law treats human rights as rights.
- Legal and moral rights: Moral rights can exist independently from legal rights, but
legal rights recognize, modify, or even create moral rights by recognizing cetrain
moral interests as sufficiently important to generate moral duties.
- Grounds for duties: Human rights imply duties.
Moral justifications: different from legal justifications of human rights. It can justify moral
and legal rights. There are various types of moral justification:
- Religious and non-religious justifications
- Prudentail justification of human rights to objective ones. Prudential reasons =
reasons relating to a person's own prospects for a good life and what is in his/her
subjective interest as a result.
- Consequetialist justification: these justifications refer to results and support human
rights becayse they make the societies that respect them more peaceful and
prosperous. (Like consequences for the general welfare)
- Instrumental justifications: account for one human right by reference to its
relationship to others, thus making the former a more fundamental right. Certain
human rights are regarded as being instrumental to others
The two moral grounds most commonly advanced for human rights are equality and dignity
- Equality: Basic moral equality is usually referred to as equal moral status.
● Moral status: pertains to the way in which a being is subject to moral
evaluation, how it ought to be treated, whether it has rights, and what kind of
rights it has.
, ● Equal moral status: refers to the idea that all people are of equal worth and
that there are some claims people are entitled to make on one another simply
by virtue of their status as persons.
- Dignity: another way of justifying human rights. Authors use dignity to refer to what is
unique in human beings and shared by all of them: their personhood and capacity for
rational and moral agency. It is a way to be treated. The meaning of dignity
corresponds to the idea of being treated with dignity or dignified respect.
Human rights apply to all individuals, regardless of their gender, religion, enthicity or
nationality = universality
Cultural relativism: not all human rights are accepted everywhere in the world (see women
rights)
- Are human rights a product of the West?
Human rights: embracing or challenging positivism?
- Human rights raised the expectation to challenge the state centric legal system, but
they failed
- Human rights are a project embedded in a state-centric legal system
- Universal declaration of human rights is not legally binding
- The human rights system is based on state consent
Limited reach of Human rights treaties
- Regional treaties
➢ ECHR
➢ ACHR
➢ African Charter
- Human rights are applicable only against States → what about the
responsibility of non-state actors?
- Human rights are applicable only in the territories of the signatory states
→ what is the status of human rights in those countries that have not
signed such treaties? Extraterritorial application of human rights?
Waldron: human dignity is the basis of all human rights treaties
➢ What is a foundation?
➢ What does human dignity mean?
➢ Do we need to keep asking the foundation question?
➢ What is the foundation of human dignity?
Why human and not minority rights?
- Mazower: should we reconsider the notion of the protection of the human being vs
the protection of groups?
- It is an historical case that we have a prevalence of human over minority rights
Sources
Art. 38(1) statute of the international court of justice → sources of international
law
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