Occupancy rights: dynamic as well as located

ABSTRACT

Anna Stilz’s Territorial Sovereignty (2019) aims to be a revisionist account of territorial rights that puts the value of individual autonomy first, without giving up the value of collective self-determination. In what follows I examine Stilz’s definition of occupancy rights and her emphasis on the moral relevance of what she calls ‘located’ life plans. I suggest that, if it aims at being truly revisionist, her theory should work with a broader definition of occupancy. So long as it doesn’t, these rights will be mainly the preserve of groups of settlers and peoples with predictable patterns of movement. Moreover, insofar as occupancy rights ground collective rights to self-determination, they actually have the potential to trump individual rights to what I call ‘dynamic’ or non-located occupancy. This is worrying, I claim, for at least two reasons. First, rights to dynamic occupancy are arguably as central for respecting individual autonomy as rights to located occupancy. And second, rights to dynamic ocupancy should be seen as key in helping to form the kind of political allegiances required to overcome the most pressing collective action problems that humanity faces.     

Liberal Nationalism and Cultural Rights

Liberal nationalists such as Yael Tamir and Will Kymlicka have argued for an extravagant range of cultural rights based on respect for individual autonomy. I present an alternative account of the moral import of liberal autonomy for the status of cultural minorities. The article examines three pivotal aspects of Tamir's argument for cultural rights and argues that, in each case, Tamir's position fails to honour the value of individual autonomy, and in ways parallel to Kymlicka's argument. These shared difficulties point to some basic ontological and moral properties of a genuine autonomy-based defence of cultural rights.     

Korea's technological development

Abstract

Indigenous peoples’ rights, including the right to self-determination, are increasingly codified in international law and policy and disseminated globally by international organizations. These norms mark a profound change in the ideals of citizenship promoted by the international community, away from linguistically and institutionally homogenous citizenship in centralized states to group-differentiated citizenship in decentralized, multi-level and multi-lingual states that use local and regional autonomy for the accommodation of indigenous peoples. Essential to realizing these norms is the devolution of some degree of autonomy to sub-central state units substantially controlled by indigenous communities. Because the transfer of powers to indigenous peoples is crucial to their accommodation, protection and participation in modern states, and because decentralization programs are an important component of reform agendas in most developing countries, it is important to understand how these emerging norms are integrated into real-world decentralization processes.

This article analyzes the application of the World Bank's safeguards policy for indigenous peoples within the institution's support to decentralization reform in Cambodia. The analysis demonstrates that under certain circumstances, the policy not only fails to translate into effective protection but leads to outcomes diametrically opposed to its objectives. In its current design, Bank support to decentralization contributes to the marginalization of indigenous peoples in Cambodia and undermines the institutional, cultural and natural resources upon which their empowerment and participation depends. In environments in which full compliance might be unrealistic to accomplish by individual projects, safeguard obligations lead to a strategy on the part of Bank projects of avoiding geographical and policy areas that are likely to trigger the safeguards policy, in order to reduce projects’ vulnerability to non-compliance claims. The article discusses how more effective application of the safeguards policy might be achieved and how strategies for the empowerment of indigenous peoples can more effectively draw on decentralization frameworks.     

新型人格权的塑造及其法律方法救济

转型社会中，各种新型人格利益层出不穷。但在人格利益转化为人格权上，却存在着利益泛化为权利以及权利的绝对化等问题。这一方面是因为在权利的确定中，不能有效运用法治思维进行新型人格权的塑造；另一方面，在权利的保护上，长期的“立法中心主义”造成诸多新型人格权利难以通过司法程序有效救济的僵局。所以，新型人格权的塑造及其保护必须诉诸“司法中心主义”的立场转换，并把新型人格权利的自然权利属性和伦理价值诉求变为可予以司法救济的法治诉求。此过程主要表现为裁决中的法律方法运用。如通过法律解释方法探寻案件裁判的法律依据；通过利益衡量方法明确权利泛化及冲突的权衡标准；以及通过法律修辞方法拨开笼罩在典型人格利益纠纷案上的权力或道德修辞迷雾。     

Unequal access to human rights: the categories of noncitizenship

Abstract

International human rights law consists of a body of basic rights and principles that States are to enforce with respect to every person within their borders. The unfortunate reality, however, is that many States are incapable of ensuring the rights of everyone, and in some instances simply do not wish to do so. Accordingly, citizenship serves as an acknowledgment by a State that the status holder is entitled to a higher degree of protection. Conversely, noncitizens may enjoy less rights than citizens, and certain categories of noncitizens frequently find themselves outside of the State’s protection entirely. This article outlines many of the rights that international law directs should be enjoyed by every human being, the factors that contribute to unequal enjoyment of these rights, and the categories of noncitizen associated with the mediated allocation of basic human rights.     

Common law environmentalism

The necessity to control environmental externalities is almost invariably given as justification for command-and-control regulation and other forms of state intervention in related markets. When even mentioned, common law remedies that protected environmental rights for centuries are quickly dismissed as either being unworkable or ineffective. A review of the common law experience indicates that the rule of law can be effective in protecting environmental rights. Indeed, it is quite possible that common law was too effective, which led to special interest demand for statute law. The rule of politics may be more attractive to rent seekers than the rule of law and markets.     

A feminist challenge to the gendered politics of the public/private divide: on due diligence,domestic violence,and citizenship

This article examines the feminist appropriation of the legal principle of due diligence to politicize acts of violence at the hands of private actors within the private sphere. This move expanded traditional notions of state responsibility for violence against women under international human rights law. Using frame analysis, we focus on the institutionalization of this feminist understanding of due diligence through its discursive incorporation in international human rights policy documents and its mobilization in cases of domestic violence litigated within the UN and the Inter-American and European human rights systems. Through this discursive framing work and its institutionalization, feminists have challenged the gendered politics of the public/private divide to change the terms on which differently positioned women can engage with the state and global governance institutions. We argue that this change can potentially reconfigure women's state-bounded and transnational citizenship. The implications of due diligence as a political and sociological concept require more careful consideration by citizenship and human rights scholars.     

Taiwan and the geopolitics of late development

Abstract

Through a case study of Taiwan, this paper seeks to address recent debates surrounding the transformation of developmental states in East Asia. Whilst a number of authors have cited the Taiwanese state as being both cautious and resilient in the midst of global restructuring, this paper seeks to critically engage with such arguments by highlighting the dynamic and mutually constitutive relations between the forms of social relations that underpin late development and the wider geopolitical system in which such development occurs. Specifically, Taiwanese industrialisation can be viewed as an outcome of the US intervention in the Chinese civil war and subsequent exclusion of China from the regional political economy in the period between the Korean and Vietnam Wars. The Kuomintang (KMT)'s retreat to Taiwan established the basis for the autonomous developmental state, and the US underpinned this state through military protection, aid and access to its own domestic market. However, the relative decline of US hegemony and the readmission of China into the international system have posed significant challenges to Taiwan's developmental state. The US sought to redress its trade imbalance with East Asia by placing pressure on Taiwan to liberalise its political economy. Furthermore, the very process of development itself served to undermine the autonomy of the state as it came under pressure from new social forces. Taiwan has more recently been faced with a dilemma of closer integration with the mainland or the maintenance of its de facto economic and political independence at the risk of becoming isolated from the global trading system.     

Self-determination as a universal human right

Conventional wisdom suggests that promoting self-determination for peoples and protecting the human rights of individuals are competing priorities. However, many recent international human rights documents include rights of peoples in their lists of basic human rights. In this paper, I defend including at least one people’s right, the right to self-determination, in the list of basic rights. Recognizing that self-determination is a constitutive element of human dignity casts state sovereignty in a different light, with interesting consequences both for international law and for philosophical debates about the rights of minorities.     

Responsibility to Peace: A Critique of R2P

Abstract

The NATO bombing of Yugoslavia in 1999 led to the doctrine of R2P, which envisages the use of force in defence of human rights. But as the Kosovo conflict demonstrates, nothing is more destructive of human rights than war. The protection and promotion of human rights should be done through lawful and non-lethal means. This essay argues that citizens and states have a responsibility to peace as much as to human rights because human rights can only flourish in a condition of peace. This essay seeks to restore peace to its proper place in the discussion of international politics and human rights.     

‘A Nation Reborn’: Right to Law and Right to Life in The Purge Franchise

ABSTRACT

Popular culture matters for helping make sense of our political lives. This article addresses the value of dystopian horror films in challenging narratives about the state. It is situated within broader understandings of popular culture and politics, and specifically within narrative understandings of the state as a performative body. It presents The Purge film franchise as an example of such a challenge to state narratives, and argues that through its distortion of dominant state narratives, the franchise reveals and challenges the intersections of economic and racial inequality in the neoliberal United States. It examines in particular the emergency broadcast featured in all four films, which positions citizens in a relationship with law and life where the right to law conflates the right to life, and argues that the films present an understanding of vulnerability and abandonment that are in some ways already present in the state. It concludes by questioning what, if any, the capacities are for resistance.     

The unbearable rightfulness of being human: citizenship,displacement, and the right to not have rights

Claims to human rights protection made by displaced persons are displaced from the universe of humanity and rendered ineffective by the geopolitical character of modern international human rights law, in favour of the protection of citizens' rights claims. In response, there is increasing interest in leveraging respect for and protection of the rights of displaced persons through extension of the rights enjoyed and supposedly borne by emplaced citizens. However, it is a mistake to assume that humans as citizens bear human rights or that the freedoms that they may be able to extend beyond state boundaries are universalisable. The extension of the right to citizenship functions to displace questions of human rights themselves. The question of the human in rights is in fact always displaced, as long as the human subject is acted upon as if it could possess rights. In paying attention to the critical perspectives with which displaced persons confront the citizen, she or he may come to appreciate the fact that the universality of human rights is served where one does not claim to have rights but, rather, actively engages, without limits, with others in the struggle for rights and their respect.     

Intervention in the Emerging Multipolar System: Why R2P will Miss the Unipolar Moment

Abstract

With the rise of China and Russia, the international system is poised to shift from unipolarity to multipolarity. This article argues that this structural reconfiguration will have—and is having—a profound effect on the future efficacy of the responsibility to protect (R2P). The rise of R2P, we argue, must be situated in the context of the end of the Cold War and the ‘unipolar moment’ this heralded. The efficacy of R2P is predicated on the assumption that moral advocacy can influence liberal democracies to re-orientate their foreign policy priorities towards human rights protection. We argue that the emerging multipolarity will expose the temporal specificity of this strategy and, ultimately, weaken the influence of R2P.     

Information sharing,secrecy and trust among law enforcement and secret service institutions in the European Union

Abstract

Transnational information sharing among security agencies in the European Union and beyond has grown considerably more important over the past decades. Centralised databases and numerous formal and informal networks now facilitate cooperation and information sharing. However, sharing intelligence may not only conflict with the protection of fundamental rights (data protection/privacy; presumption of innocence), but also with the organisational culture of institutions that are built upon secrecy. Police agencies often keep knowledge about individual cases and their strategies secret as long as possible. Intelligence services build their work and strategies upon secrecy even more. This paper analyses the variations of secrecy that can be observed for police agencies and secret services, and the relationship between information sharing among security agencies, secrecy, trust, transparency and accountability. In a normative perspective, the paper explores answers to the questions of how secret the work of security agencies should be in democratic rule of law systems and how accountability can be improved without making these institutions work less effectively.     

A comparative view of indigenous citizenship issues

Following the Wik decision it is being suggested that Australia ought now to revisit the translation of special legal norms formulated in international law with respect to the human rights of indigenous citizens. These have previously underpinned developments in both Australia and Scandinavia with respect to indigenous people. Recent Australian developments, particularly the struggle over indigenous property rights, exemplify the argument of O'Neill (1997) in the first volume of Citizenship Studies, which points to the absorption of civic autonomy by market sovereignty. O'Neill is correct to suggest that the dominance of market sovereignty reduces the political participation of those incapable of the competitive struggle for private affluence and that this has a squalid dimension. Central to this is the denial of the notion of community and dominance of the market. This dominance has obscured the significance of the Australian High Court's recognition of aboriginal land rights in Mabo. The decision put the incorrect application of terra nullius—or no man's land—to Australia to rights. It made it possible for the nation to contemplate indigenous sovereignty consequent upon the recognition of native title property rights. Australia's translation of those rights with the Native Title Act 1993 (Cth) looked to international law for its rationale. The rights of the Sami people have been developed in Scandinavia largely with reference to the evolution of international law on indigenous peoples. As we approach 2000, Australia cannot continue to ignore the special legal norms in international law relating to citizenship of indigenous peoples. International law informs attempts by indigenous people in modern times to regain some of what they lost in the past.     

When is a child not a child? Child soldiers in international law

International humanitarian law and international human rights law both prohibit the use of child soldiers in armed conflict. The protection afforded to children is problematic because the age a child may become a soldier and what constitutes child “soldiering” fluctuates between States and cultures. Differing levels of children soldiers’ protection leave them vulnerable to particular abuses. This paper examines some different attitudes and approaches towards the use of child soldiers and concludes that international human rights law and international humanitarian law does not adequately protect children.     

Is There a Nonprofit Advantage? Examining the Impact of Institutional Context on Individual–Organizational Value Congruence

This article addresses an important question: do nonprofit organizations have an advantage over public organizations in fostering individual–organizational value congruence? The authors argue that nonprofit organizations do have an advantage. This is because institutional differences between the two sectors become manifest through nonprofit status and the extent of external control, which influences the organization and the individual. External control and sector status (nonprofit versus public) determine the extent of centralization, organizational goal ambiguity, and work autonomy. In turn, these three organizational characteristics shape individual–organizational value congruence. Although the results provide support for the nonprofit advantage thesis, it is worth noting that organizational effects on individual–organizational value congruence are more powerful. Indeed, the results suggest that managerial and organizational actions, compared with sector status, are more likely to influence individual–organizational value congruence.     

Principles of Autonomy*

Autonomy has two faces, individual autonomy and institutional autonomy. Political systems not only deal with demands for individual freedom, the traditional rights of citizens to freedom of opinion, association and contract. Institutional autonomy is a pervasive property of all kinds of political systems. To international political systems just as to local and regional political systems, autonomy is a basic property. Both types of systems face the difficult task of maintaining stable relations with the nation state, securing an amount of control for the nation state while retaining some autonomy for themselves. The demand of various regions for independence or semiindependence within nation states has been a dominant theme in the politics of the sixties and the seventies. The autonomy of the nation state is its sovereignty. International political systems present a threat to the autonomy of the nation state, while at the same time they may provide mechanisms by means of which other sources of infringements on autonomy may be counteracted. Autonomy is a fundamental political property. A theoretical understanding of autonomy is conducive to the explanation of those aspects of political systems that are related to stability. Such an interpretation may place autonomy in an equilibrium analysis of how demand and supply of autonomy interacts with other basic political properties like influence and control.