Conceptual Debates Flashcards
Traditional 3 Generations
- Civil & Political Rights (championed by the west); having these wards off capacity of state to interfere with other rights
- Economic, Social, & Cultural Rights (championed by east/Soviet Union)
- Collective Rights (group rights) - right to peace, environmental sustainability, etc.
CHALLENGED by the notion of INTERDEPENDENCE
Rights cannot be divided neatly into three categories; are indivisible and inter-related
State Obligations
- Respect rights: neither the state nor its agents (police, military, et alia) should violate them directly
- Protect: ensure private actors don’t violate them
- Fulfill: create an “enabling environment”
Capability Approach
based on assessment of human “functionings” that we have a right to what we ought to have the capability to do alone or with help from others
state agents & civil society have responsibility in ensuring this is maintained
Life
- ICCR
Bodily Health
- ICESCR
- CRC
- ILO conventions
Bodily Integrity
Senses
Imagination & Thought
ICESCR
Emotions
Practical Reason
Affiliation
Relationships with Other Species
Control Over One’s Own Environment
Rights Claims
People with needs must wait until someone with power exercises discretion to fulfill their needs BUT claimants of rights have legal standing
“A has a right to object X against B by virtue of ground Y”
Group Rights 2 Types
Group-Differentiated Rights: individual people within groups can exercise the rights independently of the group (e.g., trade unionist’s right to non-discrimination)
* Collective individual rights: can be enjoyed by the individual, but specific policies & provisions granted "collectively" due to history of oppression or marginalization (e.g., women's rights, quotas)
HOW Enforcing State Accountability
general comments (soft law) written by treaty monitoring bodies - guidance for ratifying states
Optional protocols which allow for individual complaints (additions to treaties, added later, specific issues)
EX: ICCPR, ICERD, CPRD
ICCPR General Comment 31
Respect, Protect, Fulfill spelled out
includes application for people that aren’t citizens but in the state’s territory & peacekeepers in another nation
Toolkit for reparations
Voiced concerns about impunity
Market
Sector in which products/services are bought and sold; for-profit sector
Civil society
social sector separated from state & market
Three Spheres
state, market, civil society
Khan
As a part of the “protect” aspect of States, they say that Companies have a responsibility:
1. To “uphold rights…within their area of control and sphere of influence…”
i. Whether in the context of their operations or in the community they do business
2. “…whether in the context of their operations or in the communities in which they operate”
UN Global Compact
Membership bodies companies can join that includes them reporting their goings on.
Run through UN but not a UN agency.
UN Guiding Principles on Business and Human Rights (10):
1. Do not contribute to abuse
2. Do not profit from it
3. Be aware of it
4. Avoid complicity in it
Ruggie Principles
- soft law that points to existing hard law we should enforce effectively
- State has a duty to protect human rights
- Corporations are responsible to respect human rights (by observing law)
- Victims of business-related abuses have a right to remedy
○ States and companies are jointly responsible for remedy
Alien Tort Claims Act
Hard Law
○ Statute is part of US law (ie. Judiciary Act of 1789)
* Originally aimed at prosecuting piracy; interference with the rights of ambassadors, etc.
○ Ex: if the ship of another country and pirates are in US when something happens, can go to US courts
* Provides legal venue for victims who can use US courts to bring charges against other parties, even when neither party is connected to the USA
* Accused must be in USA to be served court papers
Public sphere
Public institutions, public spaces
private sphere
traditionally, at home
CEDAW
Convention on the Elimination of All Forms of Discrimination Against Women
general comment 19: “includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately” BUT many argue this is not enough, VAW needs its own convention
DEVAW
Declaration on Elimination of Violence Against Women
not legally binding (soft law)
□ Violence within the family □ Violence within the community (schools, workplace, police station, religious institutions, etc.) □ Violence perpetrated or condoned by the State
State Complicit in VAW if:
- State does not act effectively to end violence against women
- Formally prohibits violence (in law) but widely tolerates it (in practice)
- DEVAW: holds states accountable for condoning violence against women in home, community, or perpetrated by the State - but is soft law
- UN Security Council Resolution #1325 (2000) addresses violence against women in armed conflict; SC Res. #1820 (2008) addresses sexual violence against women in armed conflict
Why do environmental rights matter?
- Demonstrate the interdependence of all rights: Life, Food, Health, Work Culture
- Have significant implications for duty bearers
○ Because rights and duties are inextricably connected
- Have significant implications for duty bearers
International Environmental Law
Stockholm Conference (1972) declaration asserts:
- INTERGENERATIONAL JUSTICE
○ People have duty to “protect and improve the environment for present and future generations”
○ The environment “is essential to the enjoyment of basic human rights even the right to life itself”
* SOFT LAW: Stockholm Declaration (1972) Bruntland Commission Report "Our Common Future" (1987): building on 1972 Stockholm Conference, Bruntland Report pioneers concept of "sustainable development"
○ Agenda 21 (1992): adopted at the UN Conference on Environment & Development ("Earth Summit") at Rio de Janeiro, Brazil; paves the way for UN program focusing on policy coordination for sustainable development
HARD LAW:
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (opened for signature in 1989; came into force in 1992): regulates toxic waste movement across borders (see weblink)
○ Kyoto Protocol of the UN Framework Convention on Climate Change: language originally drafted at the “earth Summit” was later adopted in 1997 as a formal treaty, came into force in 2005; aims at reduction of greenhouse gases globally
* International Covenant on Economic, Social, & Cultural Rights (ICESCR)
○ Environment is not explicitly named, but it is linked
○ Opened for signature in 1966; came into force in 1976
○ Environmental rights are implicit
○ Article 11: people have right to “continuous improvement of living conditions”
§ Progressive recognition of rights
○ Article 12: and to “highest attainable standard of physical and mental health”
* International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
○ Opened for signature in 1969; USA ratified 1994
○ Article 5 prohibits racial discrimination in economic sphere. Housing and public health
* American Convention on Human Rights (note: USA has only signed, not ratified)
○ For all countries of the “Americas”
UDHR Article 17
“everyone has the right to own property alone as well as in association with others” and “no one shall be arbitrarily deprived of this property”
formal v. informal sector
formal - taxed & regulated
informal - untaxed & unregulated
Risks of Informality
- No legal protection of property (no contracts, leases)
- no access to formal credit markets
- less access to infrastructure
- risk of mistreatment by authorities
Advantages of formalization
- access to credit
- better access to infrastructure
- enhanced wealth generation
- improved governance
DeSoto Critique
Optimistic about formalization. People might not be able to afford this and become homeless from taxes and other issues
