The possibility of secular human rights: Alan gewirth and the principle of generic consistency

This article explores Alan Gewirth’s argument for a secular foundation for the idea 2 of human rights as a possible response to Michael J. Perry’s claim “that the idea of 3 human rights is…ineliminably religious.” I examine Gewirth’s reasoning for constructing 3 a theory, namely that existing theories are fundamentally flawed and leave the idea of human rights without a logically consistent foundation, before considering in detail his claims for the Principle of Generic Consistency (PGC). Having looked at his critique of numerous other theories, as well as at his own argument about human action grounding basic rights to freedom and well-being, I then offer a critique of Gewirth’s PGC. Ultimately my conclusion is that Gewrith's 3 theory relies too heavily on the notions, first that we have a meta-desire not to contradict ourselves and, second, that we are unable to find persuasive justifications for our behavior that might allow us to avoid self-contradiction. If one is not troubled by charges of self-contradiction or, as is more often the case, one does not recognize that one’s victim is as much a human being as oneself, Gewirth’s theory 5 V 3 will not seem particularly persuasive. *** DIRECT SUPPORT *** A28BB025 00003     

Bridging the human rights—Sovereignty divide: Theoretical foundations of a democratic sovereignty

Human rights and sovereignty are generally construed as disputatious, if not entirely incompatible; the liability of the former constrains the license of the latter. This article challenges the certitude of that notion and argues that democratic, isocratic, and humanistic elements, or what may be thought of as precursors of human rights, are actually embedded in early theories of sovereignty, including what I call Bodin’s hierarchical, Althusius’ confederative, Hobbes’ singular, and Hegel’s progressive/constitutional sovereignty. Despite the differences in governmental structure to which each attaches sovereignty, each disassociates sovereignty from its agents (who does the work of supreme authority) and aligns it to its end (the good of citizens). From them I derive eight theses to ground a democratic, human rights friendly conception of sovereignty, which aids in bridging the divide between human rights advocacy and sovereign defenders.     

Are There Universal Collective Rights?

The first part of the paper focuses on the current debate over the universality of human rights. After conceptually distinguishing between different types of universality, it employs Sen’s definition that the claim of a universal value is the one that people anywhere may have reason to see as valuable. When applied to human rights, this standard implies “thin” (relative, contingent) universality, which might be operationally worked-out as in Donnelly’s three-tiered scheme of concepts–conceptions–implementations. The second part is devoted to collective rights, which have recently become a new topic of the human rights debate. This part provides the basis of political–philosophical justification and legal–theoretical conceptualization of collective rights, as rights directly vested in collective entities. The third part dwells on the problem of universality of collective rights. It differentiates between the three main collective entities in international law—peoples, minorities, and indigenous peoples—and investigates whether certain rights vested in these collectives might, according to Sen’s standard, acquire the status of the universal ones. After determining that some rights are, in principle, plausible candidates for such a status in international law, this paper concludes by taking notice of a number of the open issues that still need to be settled, primarily by the cooperative endeavor of international legal scholars and legal theorists.     

Are the powers of traditional leaders in South Africa compatible with women’s equal rights?: Three conceptual arguments

This paper is about conflicts of rights, and the particularly difficult challenges that such conflicts present when they entail women’s equality and claims of cultural recognition. South Africa since 1994 has presented a series of challenging—but by no means unique—circumstances many of which entail conflicting claims of rights. The central aim of this paper is, to make sense of the idea that the institution of traditional leadership can be sustained—and indeed given new, more concrete powers—in a democracy; and to explore the implications that this has for women’s equality and equal human rights. This is a particularly pertinent question in the South African context, and I think it is worth reiterating from the outset that there is a distinct impression that women’s equality is always “up for grabs” when other, perhaps more powerful interests, come into play, in a way that would be unacceptable for other aspects of identity, and therefore signifiers of equality. It would be inconceivable, for example, to countenance a claim for a hierarchical racial arrangement in a given community, no matter how deeply culturally entrenched that arrangement was, and regardless of how much support it (ostensibly) had from the community concerned. I think therefore that we are obliged to ask difficult questions about the new legislation on traditional leadership, and to put it under the microscope of political theory in assessing the claim that this is one way of recognizing people’s rights and freedoms in a new democracy. The Traditional Leadership and Governance Framework Act 2003, omits reference to the “powers” of traditional leaders, but rather refers to “functions and roles” which was regarded as something of a victory for women’s rights groups. However, the Commission on Gender Equality (CGE) and others point out that this victory has been all but nullified by the Communal Land Rights Act, 2004, which allocates powers of land administration to traditional councils, which are headed by traditional leaders. In any event, the “functions and roles” that traditional leaders are allocated in terms of the 2003 Act are sufficiently extensive that they may be seen to allocate “power” with the reference to lesser competence appearing to be a mere semantic device for the sake of compromise.     

Flawed attacks on contemporary human rights: Laudan,Sunstein, and the cost-benefit state

After giving a brief account of human rights, the paper investigates five contemporary attacks on them. All of the attacks come from two contemporary proponents of the cost-benefit state, attorney Cass Sunstein and philosopher Larry Laudan. These attacks may be called, respectively, the rationality, objectivity, permission, voluntariness, and comparativism claims. Laudan's and Sunstein's rationality claim (RC) ist that only policy decisions passing cost-benefit tests are rational. Their objectivity presupposition (OP) is that only acute, deterministic threats to life are objective. Sunstein’s permission claim (PC) is that regulators are merely permitted, 3 not required, to take distributive and human rights concerns into account. Sunstein’s 3 voluntariness claim (VC) is that the consent of potential victims is not relevant to government regulations about risks and benefits. Laudan’s comparativism claim 3 (CC) is that there are no rules of thumb, no precomparative norms like human rights, for assessing theory choice in policy science. The paper analyzes each of these claims, shows how they undercut human rights, and argues that each of them errs.     

Obama’s Implicit Human Rights Doctrine

During his first year in office, President Barack Obama has outlined a human rights doctrine. The essence of Obama’s position is that the foreign policy of the USA is dedicated to the promotion of the most basic human right—the right to life—above and beyond all others and that the USA will systematically refrain from actively promoting other rights, even if this merely entails sanctions or raising a moral voice. This article details and examines Obama’s position and assesses its normative standing.     

Conceiving human rights without ontology

Conclusion In his book, World Poverty and Human Rights, Pogge sets out to articulate an approach to basic justice that is inversal and cosmopolitan. This notion of justice is to be articulated through the language of human rights. Pogge’s arguments about justice, moral universalism and cosmopolitanism are impressive and reward serious study. It is to be hoped. indeed, that many aspects of his argument might be adopted by the elite ruling classes of world politics; they have much to offer in the project of creating a world that is humane for all. The issues that I have raised in the foregoing argument however are central to the integrity of Pogge’s project. I have argued, in sum that it is not possible to advance a program for the expansion of justice and the implementation of human rights in world politics without making an appeal to a specific account of the nature of justice and of human rights. The account that informs Pogge’s argument is that of political liberalism, and this is an account that has much in its favor as a preferred vehicle for justice in world politics. However, this account makes itself vulnerable when it argues for universal principles without acknowledging their partisan and normative base. My argument has been that this issue is at the center of Pogge’s attempt to isolate the conception of human rights he explicates, which he wants to serve as the language for his global ethical universalism, from the ontological affirmations which make that conception of human rights possible, and which of necessity tie human rights to a specific conception of the nature of the good for human persons and groups. The attempt to establish a single, universal criterion of justice, and to express it in the language of human rights, is undermined from within for as long as it fails to engage with ontological concerns.     

Sovereignty,Human Rights,and Responsibility: Changes in China’s Response to International Humanitarian Crises

The question of whether human rights are above sovereignty has dominated China’s human rights discourse. Relying on a sovereignty-human rights spectrum, this article reviews China’s behaviors, particularly its participation in the UN Security Council, in managing the three major international humanitarian crises in the post-Cold War era—Rwanda, Kosovo, and Darfur, and finds that there have been impressive changes in China’s response to the crises. Yet, a content analysis of China’s official discourse on human rights finds that China’s attitudes towards sovereignty and human rights have not changed much. Drawing on constructivist international relations theory, this article attempts to explain the paradox. It is argued that the international discourse on the “responsibility to protect” has brought about changes in international norms regarding violations of human rights and humanitarian law, and that, having undergone in recent years an identity change from a defensive power of bitterness and insecurity to a rising power aspiring to take more responsibility, China is more concerned about its national image and more receptive to international norms, which has led to the changes in its response to international humanitarian crises.     

The ethos of sovereignty: A critical appraisal

Taking as its starting point the commonly held claim about the obscurity of the concept of sovereignty, the article first identifies a fundamental paradox between the classical Westphalian notion of state sovereignty and human rights. In the rhetoric of international politics, attempts to establish the responsibility of states to respect human rights and fundamental freedoms within their jurisdictions are often countered with claims referring to the “sovereign equality” of all states and the subsequent principle of non-intervention. The article suggests that in a more contemporary understanding of sovereignty the responsibility of a state to respect human rights and fundamental freedoms is seen as a constituent ingredient of the state itself. The chapter continues to elaborate how this change has come about. The classical notion of sovereignty is illustrated through a reading of Bodin’s Six Books of the Commonwealth (1576). In Bodin’s world, sovereignty is a constitutive element of the state, and the possibility of a multitude of sovereign entities in a global world logically denying the possibility of any “supra-national” normative framework is still a minor consideration. This possibility is only worked out with the emergence of international law. In both classics such as Emmerich de Vattel’s The Law of Nations (1758) and more contemporary treatises such as Lassa Oppenheim’s International Law (1905), state sovereignty has become conditional to recognition by other sovereign states and a subsequent membership in the “family of nations.” The conditional membership in the “family of nations” involves a contradiction: a sovereign state must act in a “dignified” manner, it must use its sovereignty with “restraint” by respecting the human rights and fundamental freedoms of its citizens, i.e., it must employ its sovereignty in a non-sovereign way. This restriction of sovereignty, addressed as “ethical sovereignty,” becomes a constitutive element in a post-Westphalian state and a central ingredient in the contemporary doctrine of humanitarian intervention. The article further criticizes the various uses (and abuses) of “ethical sovereignty” in the regulation of “failing” and “rogue” states and concludes by identifying its general political dangers. Finally, with reference to Jacques Derrida’s Rogues (2003), the article suggests a more radical reappraisal of the concept of sovereignty. It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority. Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs.¹ —Lassa Oppenheim But to invoke the concept of national sovereignty as in itself a decisional factor is to fall back on a word which has an emotive quality lacking meaningful specific content. It is to substitute pride for reason.² —Eli Lauterpacht     

Compliance and Non-compliance with International Human Rights Standards: Overplaying the Cultural

This paper interrogates a ‘positive’ view of culture’s (potential) role in widening compliance with international human rights standards, which (1) concentrates on the ‘cultural’ bases of conflict over rights and, in consequence, (2) focuses primarily on cultural interpretation as a means of achieving greater respect for rights norms. The thrust of the paper is that the relationship between culture and human rights norms is much more complex than this positive perspective implies and, this being so, that some of its claims about the potential benefits of cultural interpretation for widening rights compliance are hard to sustain. I substantiate this argument by exploring five challenges to this approach.     

Global poverty and responsibility: Identifying the duty-bearers of human rights

Many rights theorists argue that global poverty violates certain human rights, so that responsibility to address poverty involves carrying out the duties that correspond with relevant rights-claims. Liberatirians argue that the rights and duties associated with global poverty, especially what are sometimes thought of as “positive” rights, or rights of assistance, are inappropriately agent-neutral, giving them less justificatory force than agent-relative rights and duties. To counter libertarian concerns, Thomas Pogge tries to reframe the responsibilities corresponding to human rights as institutional rather than as belonging to agents. While admirable, his approach inadequately expalains the relationships between institutional responsibility and individual and collective action. A better way to respond to libertarian concerns—that is also compatible with Pogge’s emphasis on institutional responsibility—is to show that the duties regarding global poverty are indeed agent-relative, but by virtue of individual and collective action within institutions.     

Splitting the difference: Partnering with non-governmental organizations to manage HIV/AIDS epidemics in Australia and Thailand

Conclusions Australia and Thailand have made great progress in partnering with NGOs to respond to HIV/AIDS through the protection of human rights. Unquestionably, the Australian experience is more advanced. However, it is important to note that Australia’s political institutions and traditions were able to empower and accept an NGO movement of this nature almost from the start of disease identification.Thailand did not have this advantage, having only moved toward political institutions that are open to public opinion and civil society’s input within the last 15 years. In spite of their varied histories, both countries eventually traveled down similar paths. In Australia, HIV/AIDS NGOs moved rapidly forward from being standard-setting, fact-finding, and advocacy organizations to becoming capable of creating new HIV/AIDS umbrella organizations and influencing existing governmental organizations on HIV/AIDS human rights issues. Indeed, by the close of the 1980s, NGOs had established themselves firmly in all of these roles. The fact that Australia still struggles with addressing an emerging epidemic among indigenous people is more a sign that the movement has thus far been incomplete than that it is faltering or ineffective. Additionally, now that NGOs are actively working through AFAO on behalf of indigenous peoples, it is likely that there will finally be more movement on human rights and H1V/AIDS issues for this group. However, sex tourism and the illegal trafficking of women and children for purposes of prostitution continue to require ongoing proactive management by the partnership before they become a serious epidemic threat. Thailand’s situation is somewhat different from that of Australia. The HIV/AIDS NGO community has grown since the epidemic exploded in the 1990s, but the organizations themselves continue to have limited power, While they have been an important voice in human rights standard-setting, fact-finding and advocacy regarding HIV/AIDS, they remain unable to fully influence the governmental organizations that ultimately make and implement human rights policies in these areas. As the NGO experience in general is new to Thai politics, continuing human rights abuses are a sign of the miles left to travel on this road rather than an indicator that the road needs to be abandoned. Regardless of their differing experiences with creating HIV/AIDS partnerships, it is impossible to say that either effort has failed to use this mechanism successfully to at least begin seriously addressing HIV/AIDS human rights issues. What can be said is that each partnership can be placed at a differing point on a continuum of effectiveness that ultimately concludes with a fully integrated partnership capable of fundamentally influencing a country’s HIV/AIDS human rights policies on an ongoing basis.     

Violence against women and economic, social and cultural rights in Africa

International human rights treaties and declarations lay out the interconnection of civil and political rights with economic, social, and cultural rights. However, it was not until 1993 at the 2^nd UN Conference on Human Rights in Vienna that governments agreed that all of women’s rights are an integral part of human rights. Promoting women’s economic, social, and cultural rights is a critical human rights advocacy issue. Poverty leaves women more exposed to violence and less able to escape it, and severely restricts women’s ability to organize and fight for change. The article describes work by AI and other NGOs on violence against women and its connection with women's poverty and lack of education, healthcare, housing, and access to land in Africa. Besides the burgeoning of African women’s organizations calling for protection of all women’s human rights, a second hopeful development has been approval in July 2003 of an historic Protocol on the Rights of women in Africa.     

Using Rights to Counter “Gender-Specific” Wrongs

One popular strategy of opposition to practices of female genital cutting (FCG) is rooted in the global feminist movement. Arguing that women’s rights are human rights, global feminists contend that practices of FGC are a culturally specific manifestation of gender-based oppression that violates a number of rights. Many African feminists resist a women’s rights approach. They argue that by focusing on gender as the primary axis of oppression affecting the African communities where FGC occurs, a women’s rights approach has misrepresented African women as passive victims who need to be rescued from African men and has obscured the role of certain international institutions that have perpetuated the oppression of African women. In this paper, I defend these critiques by arguing that the use of a women’s rights framework to combat practices of female genital cutting among African communities has often been practically ineffective and morally inappropriate.     

The rights of (future) humans qua humans

Human rights are rights held “simply in virtue of humanity.” In unpacking this claim, we find that theories of human rights disclose (1) something about what we understand a minimally decent human life to be and (2) who we consider to belong within a community of rights-bearers. In this article, I address two interrelated questions: When and why do future persons have standing as rights-bearing members of a shared moral community? Are the rights held by future generations best expressed in the “greening” of existing rights or in a new distinctly environmental right? I argue that human rights theorists miss an important element of the human qua human if they take ecological embeddedness to be contingently rather than necessarily relevant to human rights. I therefore argue that there are reasons to favor a new distinctly environmental human right.     

A critique of the rhetoric, ambivalence, and promise in the protocol to the African charter on human and people’s rights on the rights of women in Africa

The desire to formulate a viable treaty framework for women’s rights that will meet the challenges of the sociocultural peculiarities in Africa led to the emergence of the original draft Protocol to the African Charter on Human and People's Rights on the Rights of Women in the twilight years of the Organization of African Unity (OAU). Without doubt, the recent adoption of the African Women’s Protocol by the Assembly of African Heads of State and Government in July 2003 is a welcome development coming at a most opportune time. However, if the African Women’s Protocol is to serve its purposes in an effective way, it is absolutely necessary to articulate the normative and structural modalities that would secure the achievement of its stated ends. It is therefore in the quest for defining the strategic parameters of this new-fangled instrument that I analyze the normative promises as well as notable structural and conceptual limitations inherent in the African Women's Protocol with a view to identifying trajectories for its sustained relevance and viability. I address these concerns against the backdrop of the instrument’s provisions. Fighting for women’s rights is a positive struggle which recognizes the quality of women’s contribution to every aspect of the community... I therefore invite all to renew their energies in undertaking practical and creative initiatives to achieve full respect of the human rights of women. Mary Robinson, United Nations High Commissioner for Human Rights (1997–2001).     

Unilateral jurisdiction: Universal jurisdiction <Emphasis Type="Italic">à l’Américaine</Emphasis> in the age of post-realist power

Conclusion The United States is using the theme of rights to build its unilateralism. In order to transform this unilateralism into a convincing universalism, it needs to reinforce its “soft power,” appeal to its partners and convince them of the necessity of its initiatives. Aggressive or offensive rights and crude unilateral military interventions are dangerous per se; they might also endanger American power in the long run. Culturally, this challenge is rooted in America’s origins and in its enthusiastic desire to reform the world. In that respect, the shaping of a so-called “world community,” America is challenging continental Europe and its hierarchical universal power rooted in Catholic verticality. On the contrary, the U.S. conception of power is based on a horizontal dynamic, inspired by the structure of the reformation movement. American coercive rights are defying a universal powerless law; Luther is certainly taking its revenge against Rome. Indeed, as for now, America’s universal competence turns out to be more effective than the ICC. However, if the United States does not take into account its own aspirations to define universal norms, it will be more and more difficult for the United States to justify the necessity of its military decisions. any step back to crude realism could be a fatal regression. It will be a mistake for the pursuit of America’s own interests; it would also most probably endanger the stability of the international system, as it would foster rivalries and hostile reactions.     

Human Rights as Reputation Builder: Compliance with the Convention Against Torture

A strong record of human rights protections is an important factor for a state to maintain a positive international reputation. In this article, we suggest that states will use compliance with human rights treaties as a mechanism by which to improve their reputations to help achieve their foreign policy goals. We hypothesize that international human rights compliance is a means to improve a state’s reputation in three specific situations: when the state is facing regional pressures as the result of a desire to join a regional organization; when the state is facing regional pressures not to run afoul of a court within a regional organization; or when a state seeks foreign assistance from an entity with human rights requirements for the receipt of such assistance. We examine our theory by analyzing human rights reports regarding state compliance with specific treaty obligations outlined in the Convention Against Torture (CAT). While the evidence for our hypotheses is mixed, we do find some support for our assertion that state compliance is linked to reputational concerns. In particular, states comply with the CAT when they are part of a regional organization that has a human rights court, and when they are receiving conditional aid from the European Union.     

The Legitimacy of Using the Harm Principle in Cases of Religious Freedom Within Education

John Stuart Mill’s famous “harm principle” has been popular in the limitation of freedoms within human rights jurisprudence. It has been used formally in court cases and also informally in legal argumentation and conversation. Shortly, it is described as a very simple principle that amounts to the notion that persons are at liberty to do what they want as long as their actions do not harm any other person or society in general. This article questions whether it is legitimate to use the harm principle in cases concerning the limitation of religious freedom within education. For example, can the exemption of a learner from sex education (based on religious objections) be denied based on the argument that such an exemption will cause harm? In order to answer this question, the meaning, origin and use of the harm principle are investigated. This article also discusses four main criticisms against the use of this principle in general and in cases of religious freedom of learners in education.