1 - Human Rights Theories and Contemporary Critiques

Question 1

Structure lecture 1? (2)

Answer 1

1/ the origins of IHRL : the mainstream historical narrative and revisionist challenges

2/ flyby of HR theories, critiques and current debates

Question 2

What are the main narratives on IHRL history? (3)

Answer 2

1/ linear progressive theory

2/ precise timeframes theories

3/ new revisionism

Question 3

Main characteristics of the linear progressive theory (LPT)? (3)

Answer 3

1/ history of HR presented as an exercise of progress and enlightenment

2/ IHRL logical, coherent and well-structured from the beginning - overstates coherence and continuity

3/ teleological understanding of HR - bestowed by a superior power

Question 4

What are IHRL’s antecedents according to the LPT? (3)

Answer 4

1/ ethical, religious and constitutional antecedents

2/ commandments and religious antecedents (rights and duties)

3/ focus on reason, harmony, dvpt of a just society

Question 5

What are the written precursors of modern IHRL according to the LPT? (16)

Answer 5

1/ documents of the revolutionary, enlightenment declarative phase

2/ Magna Carta (1215)

3/ English Bill of Rights (1689)

4/ DDHC (1789)

5/ Toussaint L’Ouverture and the Haitian Slave Rebellion (1791-94)

6/ US Constitution and the Bill of Rights (1791)

7/ Act for the Abolition of the Slave Trade (1807)

8/ American Civil War (1861-65), emergence of IHL and mechanisms of IDS (Lieber Code, Hague Peace Conferences)

9/ establishment of LoN in aftermath WW1

10/ establishment ILO

11/ Nuremberg IMT (1945)

12/ UN Charter (1945)

13/ UDHR (1948) and International Bill of Rights (1966)

14/ Genocide Convention (1948)

15/ ECHR (1950)

16/ etc etc (rapid expansion)

Question 6

General information about UDHR? (6)

Answer 6

1/ drafted by 8 States at request of UN CHR (leadership of E. Roosevelt)

2/ intended as educational tool for advancement of HR

3/ adopted on 10 Dec. 1948 by UNGA

4/ addresses civil and political rights & economic, social and cultural rights

5/ does not address group or collective rights

6/ UDHR is limited bc of its scope and historical gaze

Question 7

Main characteristics of the precise timeframes theories? (4)

Answer 7

1/ tries to identify moment of inception of IHRL

2/ might focus on European Renaissance or Revolutionary period - no real logic, creation of myths

3/ notion of HR generally presented as part of Western and Christian tradition

4/ generally linked to notions of reason and civilization

Question 8

Main characteristics of new revisionism? (6)

Answer 8

1/ fundamentally rejects linear progress narrative

2/ presents discontinuity thesis (HR only emerge post-WWII)

3/ challenges assumptions inherent in mainstream narrative history of IHRL

4/ best represented in scholarship of Samuel Moyn

5/ Moyn casts HR as “last utopia”, acts as a “moral alternative to bankrupt political utopias”

6/ Moyn has an incredibly narrow conception of HR, as cosmopolitan and supra-State

7/ methodology is limited - focus on use of term ‘HR’ and only in english sources

Question 9

What must one be careful with regarding the historiographical approaches to IHRL? (5)

Answer 9

1/ all have something to offer

2/ but be wary of neat linear accounts

3/ don’t exaggerate continuities nor discontinuities

4/ the history of ideas matters, but HR does not consist of a single idea (Alston)

5/ foreground the role of power and look at history from the bottom up (TWAIL approach for example)

Question 10

Arguments surrounding the question whether the origins story of IHRL matters? (3)

Answer 10

1/ we must beware of the “idol of origins” (Bloch) -> there are no complete explanations

2/ understanding the philosophies that shape HR makes their understanding less obscure

3/ understanding the nature of HR can help clarify one’s consideration of the degree of protection available, the nature of derogations or exceptions, the priorities to be afforded to various rights, the question of the hierarchical relationships in a series of rights, the question of whether rights ‘trump’ competing claims based on cultural rooting, and similar problems

Question 11

What do the HR theories correspond with?

Answer 11

Historical context

Question 12

What are the main HR theories? (3)

Answer 12

1/ theological foundational arguments

2/ natural law

3/ positivist theories

Question 13

Characteristic of theological foundational theory?

Answer 13

for most religions, emphasis falls on duties rather than on rights

Question 14

Characteristics of natural law theory? (5)

Answer 14

1/ according to Grotius, natural law is “the dictate of right reason”

2/ according to Locke’s natural law theory, humans exist in a state of nature

3/ this theory influenced DDHC and US Declaration of Independence

4/ main problem is how to determine the norms that are to be considered as part of the law of nature (and hence inalienable)

5/ therefore, rights considered to be natural can vary from theorist to theorist

Question 15

Characteristics of positivist theories? (3)

Answer 15

1/ according to John Stuart Mill, rights are founded on utility - they protect interests considered sufficiently important to generate positive duties

2/ Jeremy Bentham described natural rights as so much “bawling on paper”

3/ rights stem from what the State has prescribed

Question 16

What do critiques of IHRL emerge from? (2)

Answer 16

the gap between :

1/ the HR ideal

2/ reality in practice

Question 17

What are the main schools of critique of IHRL? (6)

Answer 17

1/ realist critique

2/ utilitarianism

3/ marxist critique

4/ Particularist/Relativist critique

5/ feminist critique

6/ post-colonial critique

Question 18

Characteristics of realist critique? (6)

Answer 18

1/ HR cannot be above or beyond the State (Dembour)

2/ HR necessarily originate from and are enmeshed within the State (Dembour)

3/ challenges natural law premises

4/ views HR as utopian ideal divorced from the real world

5/ IR realism is the most prominent advocate nowadays

6/ HR seen as yet another tool of power and authority

Question 19

Characteristics of utilitarianism? (4)

Answer 19

1/ utilitarians seek the common good

2/ oppose the granting of individual HR

3/ believe it is impossible for HR to be absolute and/or inalienable

4/ actions must be judged morally by reference to the welfare (utility) they produce

Question 20

Characteristics of Marxist critique? (3)

Answer 20

1/ view HR as sustaining the bourgeois order and feeding oppression by privileging a particular class

2/ emancipation cannot be expected to come through HR (Talal Asad)

3/ nothing natural or inalienable about HR

4/ in communism no need for rights since no antagonism (ind. >< State) - State provides for needs

Question 21

Characteristics of the particularist/relativist critique? (7)

Answer 21

1/ object the idea that moral judgments can be made that hold true across cultures

2/ call for tolerance of practices

3/ denounce what they view as inherent imperialism of HR

4/ HR viewed as product of society which has created them

5/ universality of HR is not a fact

6/ cultural relativism -> different cultures produce different moralities

7/ doctrine of margin of appreciation as middle ground in practice

Question 22

Characteristics of feminist critique? (6)

Answer 22

1/ attack HR’s pretence of equality and neutrality

2/ bc they have been defined by men and tend to regulate the so-called public sphere, HR bypass the interests and concerns of women

3/ no singular feminist critique

4/ IL seen as a fundamentally patriarchal construct

5/ see Declaration of the Rights of Woman by Olympe de Gouges (1790)

6/ need for a gendered lens

Question 23

Characteristics of the post-colonial critique? (6)

Answer 23

1/ link HR to imperialism

2/ rise of HR in political discourse has not signalled an end to inequality

3/ seeks to reveal how colonial logic imbibes ideas and behaviors

4/ tries to make it possible to make the experiences of the colonized heard

5/ HR seen as an exclusionary concept

6/ see TWAIL and the rejection of the generational theory of HR

Question 24

What is an example of a time frame theory of HR? (2)

Answer 24

1/ J.S. Martinez

2) argues IHRL stems from Great Britain abolitionist movement in early 19th cent. leading to 1807 Act for Abolition of Slave Trade

Question 25

What are the three generations of rights and who coined them? (4)

Answer 25

1/ Vasak (UNESCO Legal advisor 1977)

2/ First Gen: civil and political

3/ Second Gen: ESC

4/ Third Gen: Collective/group

Question 26

What is the criticism of the generational approach to rights? (5)

Answer 26

1/ Jensen

2/ splitting into 3 is unhelpful, obsolete, and misrepresents the interconnection

3/ “generation” indicates hierarchy where none exists

4/ undermines common aspects shared by all HR

5/ even if analytical tool suggesting different interests, “generations” still misrepresents