Argentina's National Commission on the Disappearance of Persons: Contributions to Transitional Justice

¹This article examines the contributions to transitional justicemade by the National Commission on the Disappearance of Persons(CONADEP) in Argentina; a commission established in December1983 by then constitutional president, Raúl Alfonsín,to investigate the fate of the disappeared. In particular, thearticle analyzes how CONADEP's inquiry simultaneously servedthe functions of creating a new public truth about the crimes– which were based on secrecy, the destruction of evidenceand concealment by the state – and of collecting essentiallegal evidence necessary for the prosecution of perpetrators.Finally, it explains the success of the inquiry, which was aresult of the combined efforts of Alfonsín's democraticadministration and the Argentinian human rights movement.     

Transitional Justice, Interdisciplinarity and the State of the 'Field' or 'Non-Field'

¹Transitional justice appears to be an established field ofscholarship connected to a field of practice on how to dealwith past human rights abuses in societies in transition. Theoriginal focus of transitional justice discourse was that humanrights law requires accountability in transitions, rooted inthe discipline of law. Over time, this focus has been expandedto include a much broader range of mechanisms, goals and inquiriesacross a range of disciplines. In order to probe the currentstate of the field, this article argues against the currentconception of transitional justice as a praxis-based interdisciplinaryfield. It suggests that there is a hidden politics to how transitionaljustice has been constructed as an interdisciplinary field thatobscures tensions between the range of practices and goals thatit now incorporates.     

Delivering Lasting Peace, Democracy and Human Rights in Times of Transition: The Role of International Law

¹The increasing scope of international legal regulation, particularlyin the field of human rights, has facilitated the impositionof sustained policies of domestic reform aimed at entrenchinginternationally accepted standards of governance in transitionalsocieties. At the point of such societal change, however, thesymbolism of who makes and enforces the law is important. Thequestion of the relationship between national and internationallaw is therefore one that bears scrutiny. This article examinesthe theoretical basis upon which such policies are based, namelythe idea of a liberal peace, considering the extent to whichthe blanket implementation of international standards can addressthe need of transitional societies to reestablish the legitimacyof both political and legal authority in order to ensure thefuture protection of human rights.     

Property without authority? Between natural law and the Kantian state

ABSTRACT

In Territorial Sovereignty, Anna Stilz seeks to combine a Kant-inspired moral justification of the state with a natural law-inspired account of ‘foundational title’. The aim of my essay is to show that the contrasting ways in which these two frameworks conceptualize the relation between property (or rights over objects more generally) and authority lead to tensions on two levels of Stilz’s own argument. Concerning individuals’ occupation of land, the question is why some rights over objects can be acquired pre-politically (i.e. occupancy rights), while others cannot (i.e. property rights). And concerning states’ claims over territory, it is unclear whether state entrance basically ‘absorbs’ our political obligations, or whether states have a duty of justice to establish more ambitious (and possibly coercive) forms of global government. The underlying question is whether, or to what extent, Stilz remains committed to Kant’s unconditional justification of territorial sovereignty and, if so, how the very idea of natural rights (over objects in particular) can be made to fit into such an account.     

Minority rights and the dialectics of the nation: Otto Bauer’s theory of the nation and its contributions to multicultural theory and globalization

Conclusion This article analyzed Otto’s Bauer idea of the nation and assessed its meaning and significance qua liberal nationalism and the expansion of national minority rights in Europe. It argued that Bauer's formulation of the same rights for all minorities exposed certain limitations of multicultural theory, namely the failure of liberal multicultural theorists to adequately address the consequences of special minority rights and the potentially transformative role of labor in liberal societies that necessarily seek to be inclusive. Further, Bauer's idea of cultural autonomy raised important and relevant implications for advancing national minority rights in Europe. In particular, his initiative exposed possible ways to promote the social of cultural rights of EU Charter on Fundamental Rights. Given this and the EU's commitment to labor rights, it is curious that Bauer’s theory has not received the attention it deserves. Indeed, even if Bauer's ideas prove somewhat non-conventional by liberal standards, it is still important that we see his ideas as serving some elemental purpose in linking the advancement of national values and sentiment with the EU goal of integration.     

Justice and Culture: Rawls, Sen, Nussbaum and O'Neill

Is it possible, in a multicultural world, to hold all societies to a common standard of decency that is both high enough to protect basic human interests, and yet not biased in the direction of particular cultural values? We examine the recent work of four liberals – John Rawls, Amartya Sen, Martha Nussbaum and Onora O'Neill – to see whether any of them has given a successful answer to this question. For Rawls, the decency standard is set by reference to an idea of basic human rights that we argue offers too little protection to members of non-liberal societies. Sen and Nussbaum both employ the idea of human capabilities, but in interestingly different ways: for Sen the problems are how to weight different capabilities, and how to decide which are basic, whereas for Nussbaum the difficulty is that her favoured list of capabilities depends on an appeal to autonomy that is unlikely to be acceptable to non-liberal cultures. O'Neill rejects a rights-based approach in favour of a neo-Kantian position that asks which principles of action people everywhere could consent to, but this also may be too weak in the face of cultural diversity. We conclude that liberals need to argue both for a minimum decency standard and for the full set of liberal rights as the best guarantors of that standard over time.     

A multilevel puzzle: Migrants’ voting rights in national and local elections

How does international migration impact the composition of the demos? Constitutional doctrines and democratic theories suggest contrasting responses: an insular one excludes both non‐citizen immigrants and citizen‐emigrants; a deterritorialised one includes all citizens wherever they reside; a postnational one includes all residents and only these. This article argues that none of these predicted responses represents the dominant pattern of democratic adaptation, which is instead a level‐specific expansion of the national franchise to include non‐resident citizens and of the local franchise to include non‐citizen residents. This is demonstrated by analysing an original dataset on voting rights in 31 European and 22 American countries, and outlining a level‐sensitive normative theory of citizenship that provides support for this pattern as well as a critical benchmark for current franchise policies. The findings can be summarised in two inductive generalisations: (1) Voting rights today no longer depend on residence at the national level and on citizenship of the respective state at the local level; (2) Voting rights do, however, generally depend on citizenship of the respective state at the national level and on residence at the local level. In the article, these are called the patterns of franchise ‘expansion’ and ‘containment’. The former supports the idea of widespread level‐specific expansion of the franchise and refutes the insular view of the demos. The latter signals corresponding level‐specific restrictions, which defeats over‐generalised versions of deterritorialised or postnational conceptions of the demos. In order to test how robust this finding is, cases are analysed where the dominant patterns of expansion have been resisted and where unexpected expansion has occurred. With regard to the former, the article identifies constitutional and political obstacles to voting rights expansion in particular countries. With regard to the latter, the article shows that even where national voting rights have been extended to non‐citizen residents, containment remains strong through indirect links to citizenship.     

The Honor of Human Rights: Environmental Rights and the Duty of Intergenerational Promise

The idea of human rights either as a moral system or as a set of legal practices does not sit well with the concept of honor. This is true for both ontological reasons and because of some reprehensible misuses of the term in constructs such as “honor killings.” Yet the absence of honor as an argument for human rights comes with a high cost in the defense of human rights generally. As Hobbes made clear in his early theory, rights—and dignity—are grounded in the human capacity to make promises and in the necessity of honoring them. In his view then, honor is an essential feature of human rights and one closely linked to the human capacity for dignity. In this article, I explore how environmental human rights place a renewed emphasis on honor as a requirement for the protection of the rights of future generations. In the process, I explore the general relationship between honor, dignity, and human rights.     

Migrant Heroes: Nationalism,Citizenship and the Politics of Filipino Migrant Labor

The Philippine state has popularized the idea of Filipino migrants as the country's 'new national heroes', critically transforming notions of Filipino citizenship and citizenship struggles. As 'new national heroes', migrant workers are extended particular kinds of economic and welfare rights while they are abroad even as they are obligated to perform particular kinds of duties to their home state. The author suggests that this transnationalized citizenship, and the obligations attached to it, becomes a mode by which the Philippine state ultimately disciplines Filipino migrant labor as flexible labor. However, as citizenship is extended to Filipinos beyond the borders of the Philippines, the globalization of citizenship rights has enabled migrants to make various kinds of claims on the Philippine state. Indeed, these new transnational political struggles have given rise not only to migrants' demands for rights, but to alternative nationalisms and novel notions of citizenship that challenge the Philippine state's role in the export and commodification of migrant workers.     

Encounters with the clandestino/a and the nomad: the emplaced and embodied constitution of non-citizenship

Taking the ‘encounter’ as an analytic, this paper will argue for an understanding of citizenship as an emergent condition that is emplaced and embodied, rather than as simply a collection of rights to be possessed or endowed. This is not to deny the importance of legal status to the ways in which one inhabits the city (and therefore the nation-state), but show how this status is modulated in the everyday to constitute a range of legitimately and illegitimately present non-citizen subjects. The nature of the encounter as a constitutive event in which particular bodies are deemed in- or out-of-place will be discussed relative to two imagined figures that have been used to represent outsiders that are deemed to be illegitimately present in Italy: the clandestino/a and the nomad. These figures have been invoked in legislation and in political and popular discourse. In this paper, they are also imagined to be encountered in the spaces of the city.     

Reshaping Civil Society through a Truth Commission: Human Rights in Morocco's Process of Political Reform

¹Observers of Moroccan politics have debated extensively thesignificance of the country's ‘top-down’ liberalization.At this point, there is no definitive verdict on palace-guidedreforms, such as the recent Equity and Reconciliation Commission(IER). Rather, these reforms have left an ambiguous legacy.This article uses the IER – a truth commission establishedin 2004 to examine past human rights abuses, compensate victimsand ensure nonrepetition – as an analytical tool to understandhow transitional justice carried out as a strategic measureof top-down liberalization can reshape the relationship betweencivil society and the state. While the monarchy's reform effortsin Morocco have not (as of yet) led to a civil society capableof supporting a stable democratic transition, the article arguesthat these efforts have increased civil society's expectationsof gaining capacity and space to implement ethical goals anddemands. Greater expectations, in turn, have altered how themonarchy must calculate its survival strategy.     

Occupancy rights: life planners and the Navajos

ABSTRACT

This Comment focuses on the limitations of Stilz’s individualist conception of occupancy rights. Her account of occupancy is critical to her attempt to answer the question of where one holds territorial rights as well as related place-related rights like the right of return. Her account appeals to the geographical location of individual life plans. This Comment argues that this fails to distinguish between Indigenous People who are connected historically and in many other ways to a place and individual Life-Planners: it treats the two as equivalent, which I argue is counter-intuitive. I also argue that Stilz’s occupancy account fails to explain the scope of occupancy rights in a number of cases that she appeals to in her examples, such as the Navajos’ expulsion from the area in which they lived. What she needs, I argue, is a group based conception of occupancy rights, in addition to the idea of individual rights of residency.     

Interpreting reproductive rights: institutional responses to the agenda in the 1990s

This article reviews the way in which three very different international organisations concerned with reproductive health policy responded to the reproductive rights agenda during the 1990s. The intention is not to evaluate these responses but to describe how these organisations saw their roles with respect to establishing and promoting reproductive rights in developing countries. We seek to explore their different strategies of defining and interpreting rights, to examine the imperatives behind these strategies and to consider how these variously fed into the practical actions and agendas with which these organisations were engaged. The organisations included were the Women's Global Network for Reproductive Rights, the International Federation of Family Planning Associations and the UK's Department for International Development. Their diverse understandings about implementing reproductive rights contribute to a plural political environment in which these rights and their interpretation are debated. For all the three, their particular conception of reproductive rights is an important organising principle through which their efforts around reproductive health are given wider meaning. Copyright © 2004 John Wiley & Sons, Ltd.     

<Emphasis Type="Italic">Forum Internum</Emphasis> Revisited: Considering the Absolute Core of Freedom of Belief and Opinion in Terms of Negative Liberty,Authenticity, and Capability

Human rights theory generally conceptualizes freedom of thought, conscience, religion, and belief as well as freedom of opinion and expression, as offering absolute protection in what is called the forum internum. At a minimum, this is taken to mean the right to maintain thoughts in one’s own mind, whatever they may be and independently of how others may feel about them. However, if we adopt this stance, it seems to imply that there exists an absolute right to hold psychotic delusions. This article takes the position that this conclusion is ethically problematic from the perspective of psychiatric treatment and the rights of persons with psychosis. The article reflects on this particular challenge and sets forth an understanding of freedom in the forum internum that might apply to situations where for various reasons it is not, necessarily accurate to maintain that persons have an absolute right to their own thoughts. For the purpose of proposing such an understanding, the article engages with current debates within human rights theory and political philosophy and analyzes discussions about psychotic delusions and the way in which involuntary treatment is justified. Based on this analysis, this article in turn conceptualizes freedom in the forum internum as ‘negative liberty’, ‘authenticity’, and ‘capability’. This article suggests that when forum internum is redefined as encompassing a right to certain internal capabilities, the right remains meaningful for persons with psychotic delusions as well.     

Irregular immigrants in Australia and the United States — Rights,realities, and political mobilization

This article considers the gap between the universal promise of human rights and the reality of the rights enjoyed by irregular immigrants in liberal democracies such as Australia and the United States. Against the idea that stronger international rights enforcement mechanisms will automatically improve the position of irregular immigrants, it argues that international law currently provides a warrant for the way in which countries like Australia and the United States treat irregular immigrants. After developing this argument, the article explores how irregular immigrants might employ the language of rights more effectively in their political mobilizations.     

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.     

The Image

Abstract

The concept of ‘the image’ can be given historical, conceptual, aesthetic and moral specifications. This essay sets out some of the scholarly issues in the dense semantic field of ‘the image’. In particular, the essay considers how the meaning of the image is often determined in relation to the opposition between sensible form and intelligible idea. Specific attention is given to Kantian aesthetics, which inaugurates a specific way of understanding the sensible form as a mode of processing moral ideas.     

The North Korean factor in the improvement of Japanese intelligence capability

Abstract

Since the early 1990s, human rights have been a contentious issue for relations between the Association of Southeast Asian Nations (ASEAN) and the European Union (EU), especially in the Asia–Europe Meeting (ASEM). It is an issue that has constantly led to tensions in interregional cooperation. However, the ASEAN–EU dialogue on human rights has, in fact, had a significant impact on regional dynamics by stimulating the process of regional identity formation, especially in Southeast Asia. The core mechanism through which this development takes place is that of interaction, the process in which the two regional groupings engage while negotiating human rights policy. It can be argued, therefore, that interregional and intraregional human rights interactions are mutually dependent. ASEAN's rather confrontational mode of interaction with the European Union in relation to human rights has served as a catalyst for the dynamic growth of a collective definition of self in ASEAN. It has led to an ‘essentialization’ of ASEAN's idea of self as opposed to a common other, something which has undermined the possibility of maintaining an interregional dialogue that is not confrontational. However, it has also contributed to the development of a regional space for communicating about human rights and has thus played a central role in the gradual transformation of ASEAN's collective identity formation.     

Applying the Environment Shaping Methodology: Conceptual and Practical Challenges

Abstract

Repatriation has long been the international community's preferred solution to refugee crises. This article argues that repatriation must be understood not in terms of physical return but as a process of political rapprochement between citizen, community and state. In particular, this work takes account of the need to accommodate community-based political identities. Repatriation should be conceived of as the deliberate remaking of a social compact between not only refugee-citizen and state but also refugee-nation and state. This offers a means for resolving the inherent contradiction between the notion of universal human rights and contemporary political organization which determines meaningful access to these rights on the basis of group or national identities. This is particularly important given the role of group-based conflict in causing mass refugee flight.