Virtual Library

The human rights movement has traditionally focused on documenting abuses, rather than attempting to explain them. In recent years, however, the question of the ‘root causes’ of violations has emerged as a key issue in human rights work. The present article examines this new (or newly insistent) discourse of root causes. While valuable, it is shown to have significant limitations. It foreshortens the investigation of causes; it treats effects as though they were causes; and it identifies causes only to put them aside. With these points in mind, the article counterposes an alternative approach in which the orienting concept is not root causes, but ‘planned misery.’

This book explains and critiques the position adopted by the UK Supreme Court on disputes involving human rights, especially those protected by the Human Rights Act 1998. Building upon the fact that the UK Supreme Court, which began operating in 2009, has inherited case law developed over many decades by the Appellate Committee of the House of Lords, the book considers whether the Supreme Court’s current views are internally consistent and externally in line with the standards adopted by the European Court of Human Rights in Strasbourg. After three chapters which describe the origins of the Supreme Court and analyse its jurisprudence on the concept of human rights and on the procedural dimensions of the Human Rights Act 1998, the book examines how the Court (and the House of Lords before it) has interpreted the principal Convention rights that are given effect in UK law by the 1998 Act. It finds in relation to almost every right that the top UK court has been unduly cautious and restrained, either because it does not wish to tread on the toes of Parliament or because it is unwilling to go further in protecting human rights than the European Court of Human Rights has already gone. The book pays particular attention to instances in which decisions of the top domestic court have been overturned in Strasbourg and to the occasions on which there has been a prolonged ‘dialogue’ between the two courts over a contentious issue.

As Arthur Schlesinger, Jr. wrote, "The United States was founded on the proclamation of 'unalienable' rights, and human rights ever since have had a peculiar resonance in the American tradition." But the American fondness for human rights rhetoric has presented two fundamental problems in foreign policy. As first a reluctant great power and then a more willing superpower, the United States has faced the traditional conflict between commitment to human values and exercise of power for other interests. Equally importantly in an interdependent and nonhegemonic world, the United States has painfully discovered that the American and international versions of human rights are not the same. This article traces the workings of these twin dialectics (rights rhetoric and national interests, and rights rhetoric and community standards) from 1945 to the present in order to suggest that the United States, despite its dominant power, has not been the major shaper of community standards or international regimes on human rights; the United States in its bilateral diplomacy is still struggling to locate precisely human rights on its foreign policy agenda; the Congress, while it still does not codetermine human rights in foreign policy, is ignored and by-passed only at peril for an administration. Ultimately this article suggests that some painful political socialization is in store for the United States when it deals with human rights in foreign policy, especially since human rights in its many and complex forms is here to stay on both the U.S. and global agendas.

The author argues the concept of human rights is a development of the older notion of natural rights and that the modern understanding of natural rights evolved in the context of the European struggle to legitimate its overseas empires. The French Revolution changed this by, in effect, linking human rights to the idea of citizenship. Human rights were thus tied not only to a specific ethical-legal code but also implicitly to a particular kind of political system, both of inescapably European origin. In both cases, however, being employed was an underlying idea of universality whose origins are to be found in the Greek and Roman idea of a common law for all humanity. He ends by arguing that to defend human rights against its non-Western critics, one must be aware of the genealogy of the concept and then be prepared to endorse an essentially Western European understanding of the human.

Increasingly hard-line and restrictive asylum policies and practices of many governments call into question the scope of protections offered by the 1951 Convention relating to the Status of Refugees. Has the focus on the 1951 Convention been to the detriment and subordination of other rights and standards of treatment owed to refugees and asylum-seekers under international human rights law? Which standard applies in the event that there is a clash or inconsistency between the two bodies of law? In analysing the interface between international refugee law and international human rights law, this article looks at the right to family life and the right to work. Through this examination, content and meaning is offered to the almost forgotten component of the right ‘to enjoy’ asylum in Article 14(1) of the Universal Declaration of Human Rights 1948.

This volume aims not to retrace the fairly familiar terrain of establishing the legal character of human rights, or to argue the proposition, now well accepted, that human rights are part and parcel of the discipline of international law, but to consider the influence of human rights and humanitarian law on general international law. Although human rights and humanitarian norms are central to the book, then, it is not a book about human rights and humanitarian law. Rather, it deals with the radiation, or the reforming effect, that human rights and humanitarian law has had, and is having, on other fields of public international law. Because of the peculiarities of human rights law, this influence cannot be taken for granted. It is sometimes said that the elaboration of human rights norms and institutions has produced no less than a revolution in the system of international law. Is this true and if so, in what parts of international law? By examining most of the general areas of public international law, the author attempts to demonstrate that the influence of human rights and humanitarian norms has not remained confined to one sector of international law, and that its influence has spread to many other parts, though to varying degrees

In current political debates, the term “cosmopolitanism” is often used in quite vague ways, as part of sweeping generalizations that might not hold up to closer scrutiny. Imperfect Cosmopolis aims to clarify the meaning of the term by approaching it from a decidedly historical perspective—distinguishing, for example, between types of cosmopolitanism and the development of the concept through the centuries.

Intangible cultural heritage (ICH), made up of all immaterial manifestations of culture, represents the variety of living heritage of humanity as well as the most important vehicle of cultural diversity. The main ‘constitutive factors’ of ICH are represented by the ‘self-identification’ of this heritage as an essential element of the cultural identity of its creators and bearers; by its constant recreation in response to the historical and social evolution of the communities and groups concerned; by its connection with the cultural identity of these communities and groups; by its authenticity; and by its indissoluble relationship with human rights. The international community has recently become conscious that ICH needs and deserves international safeguarding, triggering a legal process which culminated with the adoption in 2003 of the UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage. This Convention correctly highlights the main elements of ICH and is based on the right philosophical rationale, but its operational part – structured on the model provided by the 1972 World Heritage Convention – appears to be inadequate to ensure appropriate safeguarding of the specificities of intangible heritage. This article argues that to correct such inadequacy, international safeguarding of ICH must rely on the concomitant application, even though in an indirect manner, of international human rights law, for the reason that ICH represents a component of cultural human rights and an essential prerequisite to ensure the actual realization and enjoyment of individual and collective rights of its creators and bearers.

What determines the flow of labor and capital in this new global information economy? Who has the capacity to coordinate this new system, to create some measure of order? What happens to territoriality and sovereignty, two fundamental principles of the modern state? And who gains rights and who loses rights?

Losing Control? examines the rise of private transnational legal codes and supranational institutions, such as the World Trade Organization and universal human rights covenants, and shows that though sovereignty remains an important feature of the international system, it is no longer confined to the nation-state. Other actors gain rights and a kind of sovereignty by setting some of the rules that used to be within the exclusive domain of states. Saskia Sassen tracks the emergence and the making of the transformations that mark our world today, among which is the partial denationalizing of national territory. Two arenas in particular stand out in the new spatial and economic order by their capacity to set their own rules: the global capital market and the series of codes and institutions that have mushroomed into an international human rights regime. As Sassen shows, these two quasi-legal realms now have the power and legitimacy to demand action and accountability from national governments, with the ironic twist that both depend upon the state to enforce their goals. From the economic policy shifts forced by the Mexico debt crisis to the recurring battles over immigration and refugees around the world, Losing Control? incisively analyzes the events that have radically altered the landscape of governance in an era of increasing globalization.

This special issue of the Health and Human Rights Journal constitutes another step on the path toward making the case for human rights-based approaches (HRBAs) to health. In 2003, the United Nations (UN) outlined the pillars of an HRBA to development, which include universality and inalienability, indivisibility, interdependence and interrelatedness, non-discrimination and equality, participation and inclusion, and accountability and the rule of law. Since then, leaders from national governments and UN agencies have repeatedly emphasized the need to operationalize human rights and incorporate them into the implementation of policies, programs, projects, and other health-related interventions with a view to enhancing effectiveness. Nevertheless, implementation efforts regarding HRBAs to health and development have faced, and continue to face, multiple challenges, including some degree of miscommunication and polarization between different fields, where the imperatives of health and human rights are not always seen as complementary and rights imperatives are misconstrued to ignore all concerns regarding cost-effectiveness. Even for sympathetic actors and institutions, there is a need to gather sufficient evidence of the impact of human rights to be persuasive to policymakers, donors, and the public alike.