Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies

Abstract. Although the Charter of the United Nations embodied an unresolved tension between state sovereignty and the inviolability of human rights, the fall of the Berlin Wall seemed to herald universal acceptance of the legitimacy of international concern for the protection of human rights. Since that time, however, the sovereignty of states has been pushed with renewed vigour under the guise of cultural sovereignty. Three examples of the role of cultural sovereignty in the international human rights sphere are proposed to demonstrate that the real interest of states is not the protection of cultural identity, but non-interference, supremacy and control. The paper identifies cultural sovereignty with cultural relativism and argues that the ideology of relativism, combined with the inadequacies of legal positivism, have significantly harmed the efficacy and character of the international human rights regime.     

New Malaise: Bioethics and Human Rights in the Global Era

Recent transnational HIV research projects have raised questions about the ethics of research in developing countries, and with good reason. Lower ethical standards are often applied in these settings, yet the field of bioethics has remained relatively quiet on the subject, concerning itself primarily with issues that only affect affluent countries. Here we call for a new focus on equity and human rights in bioethics.     

国际投资仲裁中的人权保护

当前,国际投资条约和投资仲裁已经给人权保护带来消极影响。在投资者与国家间的投资争端中,仲裁庭对投资有关的人权问题可以行使管辖权。人权规则也已经被仲裁庭适用于界定间接征收、确定征收补偿数额等问题。当投资者通过国际仲裁机制挑战东道国的人权保障措施时,东道国可能会援引国际人权义务抗辩投资者的主张,此时,仲裁庭应当适当考虑东道国的人权义务,而不是任由投资规则践踏人权规则。     

International Human Rights Law, Global Economic Reforms, and Child Survival and Development Rights Outcomes

Are recent trends in international law supporting child rights and promoting neoliberal economic reforms complementary or contradictory? To answer this question, we identify the component parts of child rights mobilization, recent global economic reforms, and child rights outcomes to theorize the particular relationships among them. Focusing on child survival and development rights in 99 poor and middle‐income countries from 1983 to 2001, we find that countries' acquiescence to established international law concerning economic rights influences the successful implementation of most of these rights, while the ratification of child rights treaties does not show an effect during the period studied. National links to child rights nongovernmental organizations are also associated with improved child rights outcomes, as is being selected to receive a loan from the World Bank (for reducing child labor and increasing immunizations). We find weak support for the hypothesis that the implementation of loan conditionalities is more deleterious for rights that are costlier to implement. We also find that achieving the goal of neoliberal economic reforms—trade openness—results in less successful implementation of most child rights outcomes considered. Finally, in a related analysis, we find that the ratification of child rights treaties, as well as the adoption and implementation of structural adjustment agreements, enhances the presence of child‐related organizations within countries.     

区域性人权保护制度对全球性国际人权保护的启示

尽管目前已存在为数不少的国际人权公约,国际社会成员也越来越多地加入这些公约,但全球范围内国际人权保护的效果并不明显。相比而言,区域性人权保护制度更具可行性。区域性人权保护制度在人权保护中取得了显著成绩,对全球性国际人权保护有重大启迪作用。     

区域性人权保护制度与国际人权保护制度之比较

区域性人权公约与全球性国际人权公约都规定了国家指控制度、个人申诉制度以及国家报告制度。与全球性国际人权保护制度相比,区域性人权保护制度更具可行性。由于区域内各国历史传统、政治、经济、文化、宗教等都比较接近,区域内人权标准更统一,所保护的权利主体也更具体,区域性人权保护制度在人权保护中取得了显著成绩。尤其是个人申诉制度,丰富了国际法与国际人权法的主体体系,对人权的国际保护产生了重大影响。     

Counter-Terrorism Strategies,Human Rights and International Law: Meeting the Challenges

Netherlands International Law Review -     

Human Flourishing, Human Dignity, and Human Rights

Rather than treating them as discrete and incommensurable ideas, we sketch some connections between human flourishing and human dignity, and link them to human rights. We contend that the metaphor of flourishing provides an illuminating aspirational framework for thinking about human development and obligations, and that the idea of human dignity is a critical element within that discussion. We conclude with some suggestions as to how these conceptions of human dignity and human flourishing might underpin and inform appeals to human rights.     

Hermeneutical Violence: Human Rights,Law, and the Constitution of a Global Identity

In this paper I want to analyze the process of denationalization of the law, to show how the globalization of the law can be considered as a new form of imperial control, but this time, labeled as acting for the welfare of its victims. In the first part I will analyze the national character of the law and show how it was used as an imperialistic instrument for the benefit of the imperial powers. In the second part I will show how the discourse of human rights and its universality has been the base to deny indigenous communities their right to define their own identity and how this discourse was used to destroy the old conception of sovereignty. The globalization of human rights implies the imposition of a western conception of rights, regardless of the contextual conception of the indigenous people. The discourse of human rights is part of a hermeneutical violence.     

The Proliferation of Human Rights in Global Health Governance

Human rights play an integral role in the global governance of health. Recently, both structural and normative aspects of human rights have proliferated across multiple levels and within multiple contexts around the world. Human rights proliferation is likely to have a positive impact on the governance of health because it can expand the avenues through which a human rights framework or human rights norms may be used to address and improve health.     

Constructing a Global Law-Violence against Women and the Human Rights System

This ethnographic analysis of one of the core human rights conventions suggests that despite the lack of enforceability of this convention and its operation within the framework of state sovereignty, it is similar to state law. The Convention on the Elimination of All Forms of Discrimination against Women, or CEDAW, the major UN convention on the status of women, articulates a vision of women's equal protection from discrimination and addresses gender-based violence as a form of discrimination. It had been ratified by 171 nation states as of mid-2003. Its implementation relies on a complex process of periodic reporting to a global body meeting in New York and a symbiotic if sometimes contentious relationship between government representatives and international and domestic NGOs. Like state law, it serves to articulate and name problems and delineate solutions. It provides a resource for activists endeavoring to address problems of women's status and turns the international gaze on resisting nations. Its regulatory strength depends on the cultural legitimacy of the international process of consensus building and related social movements to define social justice in these terms. Thus, like state law, its impact depends on its cultural legitimacy and its embodiment in local cultures and legal consciousness. This examination of CEDAW as quasi law extends our understanding of law as a plural and a symbolic system rooted in a particular historical moment of globalization.     

国际投资仲裁机构对涉及人权问题的投资纠纷的审理

国际投资仲裁的当事人在仲裁中提出人权方面诉求的情况在最近十几年里缓慢地增加了,仲裁庭只有在仲裁管辖条款能够覆盖人权问题,并且当事人所选择的适用法能够为人权问题的解决提供指引的情况下,才能就与投资有关的人权纠纷做出裁决。现有的国际投资仲裁机构自身存在很多缺陷,不适宜作为审理与投资有关的人权问题的理想场所。我国应该支持与投资有关的人权问题主要通过东道国的司法途径进行救济。     

Human Rights – Human Bodies? Some Reflections on Corporate Human Rights Distortion,The Legal Subject, Embodiment and Human Rights Theory

This paper responds to the subversion of international human rights discourse by corporations. It begins by placing such subversion in three contexts: the ascendance of human rights as the dominant discourse of contemporary moral and political life; the emerging challenges to human rights posed by other-than-natural-human entities; and ambiguity in the relationship between the legal subject and the human being. The author suggests that in order to resist corporate human rights distortion it is important to reclaim the language of the human for the natural human being, despite complex philosophical and definitional challenges attending the designation of the term ‘human.’ The author suggests that by re-attending to the implications of human embodiment for human rights theory it might be possible to re-invigorate the protective potential of human rights for vulnerable human beings and communities against powerful disembodied legal persons (corporations).     

促进国内人权法发展的公益诉讼策略

为了提升人权,个人需要求助法院阐明对于特定群体而言各项权利的具体内容。当国际和区域人权标准通过国内法律制度的实施而内国化时,进行公益诉讼就具备了充分的根据。这里暗含的结论是,人权法的发展出现了从国际体系向区域体系的逐步演变。本文着眼于南非的公益诉讼的实践,讨论了接近司法、诊所式法律教育以及对特定群体的法律援助等问题。作为公益诉讼策略的例证,作者对艾滋病治疗行动运动组织起诉政府做了具体详尽的分析。     

The Commission for Equality and Human Rights:A New Institution for New and Uncertain Times

The establishment of the Commission for Equality and Human Rights(CEHR) has generated a mixture of praise, controversy and heightenedexpectations. The new Commission has more extensive enforcementpowers than did the previous equality commissions. In addition,the ongoing expansion of anti-discrimination law means thatthe CEHR has new terrain on which to press for change. However,its troubled birth, the pressure of expectation, the ever-increasingcomplexity of enforcing anti-discrimination legislation andthe tensions that lurk within its broad remit present substantialchallenges for the new Commission. It will have to be flexible,creative, strategic and tough-minded where required if it isto win credibility and ensure respect for anti-discriminationand human rights values.     

Hegel, Human Rights, and Particularism

Hegel's political philosophy gives prominence to the theme that human beings have a need for recognition of those qualities, characteristics, and attributes that make them distinctive. Hegel thus speaks to the question whether human rights law should recognize and accommodate the nuances of individual make-up. Likewise, he speaks to the question whether human rights law should be applied in ways that are sensitive to the cultural contexts in which it operates. But Hegel's political philosophy evaluates norms and practices within particular cultures by reference to the higher-order and universal criterion of abstract right. In light of this point and the inadequacies of political philosophy that privileges local norms and practices, a third approach to the protection of human rights is canvassed. This approach prioritizes neither universal nor local norms. Its aim is to ensure that both human rights and the cultures in which they are applied are taken seriously.     

论欧洲理事会的人权保护制度对建立和完善国际人权保护制度的影响

欧洲理事会采取集体办法促进和保护人权的理论和实践对建立和完善国际人权保护制度产生了深远的影响 :区域性人权保护办法是在区域层面上施行《世界人权宣言》的有效途径 ;国际人权机构应通过改革不断提高人权的可司法性 ;主权国家应在采取集体办法保护区域人权方面积极行使主权权利 ;人权国际保护内在地要求增强个人的权利主体意识 ;国际人权保护机构应不断提高其工作效率。随着欧洲理事会的人权保护制度的不断完善 ,它在人权国际保护中的“领跑者”的形象和影响将得以继续显现。     

人性论,人道主义与人权研究

人权理论的基础是人性论.人性论包括两方面的内容一是什么是人性,二是人性的善恶.人性论与人道主义相联系.全盘否定人性论导致否定马克思主义中的人道主义思想.对于人性论的意识形态化的批判和对于人道主义内容和精神的限制,导致对人权概念意识形态化的解释,以及对于人权问题研究的警惕和否定.建国后一段时期,人权问题被视为理论研究的禁区,其根源在于对于人性论的认识.改革开放以来我国人权理论研究的演变经历了公民权利研究兴起、人权研究解冻、人权研究兴起和人权成为显学四个阶段.     

人权的革命与革命中的人权——对罗伯斯比尔人权观的重新解读

本文在介绍了罗伯斯比尔关于人权的基本观点后,分析了罗伯斯比尔人权观中存在的内在矛盾,并结合法国大革命的历史背景着重探讨了导致罗伯斯比尔人权理想和人权实践形成巨大差距的原因。本文认为造成罗伯斯比尔人权观的悲剧既与其思想中存在的民粹主义和道德理想主义密切相关,也与那时的人权是一种人权革命后的人权和革命中的人权这一事实有着极为重要的关系。