Midterm Material Flashcards
Universal Declaration of Human Rights
adopted December 1948 by UN General Assembly, not legally binding
- economic, social, and cultural rights
- civil and political rights
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United Nations Charter
sets rights and obligations of member states (organs and procedures of UN)
- goals: maintain international peace and security, protect HR, deliver humanitarian aid, support sustainable development and climate action
- developed commission of human rights leading to Universal Declaration of HR
United Nations
founded October 1945
- first instance of widely recognized HR after the Holocaust
- lead to cooperation of HR
International Court of Justice (ICJ)
settle international disputes and prosecute countries violating HR
- no explicit enforcement power
International Covenant on Economic, Social, and Cultural Rights (ICESCR)
added in 1966 to revise the Universal Declaration of HR (UDoHR)
- adding right to self determination
International Covenants on Civil and Political Rights (ICCPR)
- implemented in 1966 to revise UDoHR
- added in complement to ICESCR
- both expanded rights in UDoHR
International Bill of Human Rights
includes Universal Declaration of HR, ICESCR, & ICCPR
- state minimal social and political guarantees by international community
Human Rights Committee
charged with monitoring implememntation of International Covenant of Civil and Political Rights
- established in 1976 with introduction of Covenants
- part of larger movement to increase monitoring
Rome Statute
adopted in 1998 leading to establishment of International Criminal Court
- galvinized after human rights failures in Yugoslavia
- revived Nuremberg precedent
International Criminal Court (ICC)
established in 2002 in response to genocide
- Nuremberg trials as precedent
- marks deeper, normative transformation
- genocide, crimes against humanity, war crimes, etc.
Nuremberg Trials
began in 1945 to prosecute Nazis
- first instance of crimes against humanity
- lead to eventual adoption of universal human rights doctrine
- opened world’s eyes to need for human rights
Donnelly & Whelan
no human rights before world wars
- post-WW1 global economy crashes and human rights abuses are revieled
- WW2 allows for international community to come together to establish human rights
- genocides lead to international enforcement
- expanding list of human rights too much?
Locke, “Two Treatise of Government”
human rights are derived from reason (life, liberty, property)
- in the state of nature all humans are equal (human natural rights by virtue of being human)
- rights cannot be alienated in state of nature
- citizens trasfer “executive power of the law of nature” to government when consenting (never transfer rights to government)
- if a government does not protect natural rights, it loses legitimacy and citizens can overthrow
implications=everyone has the same natural rights
issues=people are born into civil society and therefore do not/cannot consent
Beitz, “Naturalistic Theories”
takes practical approach to human rights
- discredits natural rights approach as incoherent
- 4 features of natural law
1. natural rights do not depend on positive laws of society
2. natural rights are pre-instutitional in a logical rather than historical sense (fundamentals do not change)
3. natural rights are possessed by persons in all times and all places [rights need to be added and changed due to civilization and advancements–>human rights reflect changes (basis oc political approach)]
4. human rights belong to persons simply by virtue of their humanity (HR protections of interesta nd goods regardless of culture)
Gerwirth, “Basis & Content of Human Rights”
argument is agency based
- human rights are moral rights but are not based on any one morality (people must be able to exercise their agency)
- starting idea: human beigns as agents and undertake deliberate action (requires well-being and freedom)
- prudential rights: out of own self-interest, rights as poosed to demands
1. human beings are agents; purposive actions
2. agents must demand freedom (f) and well-being (w) in order to act as purposive agents
3. therefore, F & W are prudential rights (requirements of agency)
4. AGENCY –> F & W –> UNIVERSAL HUMAN RIGHTS
Beitz: Critique of Natural Law
natural law argument
1. natural rights are independent of moral conventions and positive law (based on reason-Locke, humans are equal and by virtue of being human everyone has rights)
2. natural rights (logically) pre-institutional (only reason is needed)
3. natural rights apply to all persons
4. in by virtue of humanity
5. using reason to determine some general norms or principles (natural rights as product of reason)
PROBLEMS
1. moral conventions and positive law overlap
2. natural rights and human rights overlap (reject deriving human rights from basic or natural rights, no overlap)
3. current human rights require political context and society (ex: education, social security)
- advocates for political conception of human rights
- broad conception (gender discrimination in every culture therefore it is a mistake to put culture before protecting individuals)
- huamn rights are universal
- not consenting does not undermine or make human rights inapplicable
non-parochial conception of human rights
human rights are limited, represent common element, short list can be impartial
liberal (full) view of human rights
long list, product of Western culture, linked with culture, Christian dignity
- Beitz argues for this broader conception (gender discrimination argument)
Beitz: political argument for human rights
theory of human rights without basic/natural rights foundation
- human rights should fulfill 3 specific (public) roles
1. constrains domestic institutions of states
2. describes goals of social devleopment applicable to societies
3. provide grounds for criticisms
PROBLEMS?
- rights are meaningless without realization
- fufillment of duty implies limits or impoition on freedom
rights give people control over other people’s freedom
- basic right: freedom THUS any other right (that will limit freedom) needs to be justified
- justification so they don’t violate basic rights
- only inalienable right is LIBERTY
HR derived from liberty, agency, dignity
Raz, “Human Rights Without Foundation”
claim: individual rights are human rights, if an only if they can disable the “none of your business” claim
- traditional approach (natural rights) is far removed from reality nand human rights practice
- main problems:
1. does not connect value and rights, misconceive this relationship (value does not equal right)
2. overreach, list is too long, cannot be justified
- human rights athat are successful at overriding states sovereignty are human rights (seperate svoereignty and legitimacy of states, moral justifications for interfering in state affairs)
- should not confuse human rights with priciples of justice (cannot apply domestice justce to international sphere)
- human rights are ideals (short, minimal list, political conception based on agency)
- human rights face three crises
1. political: rights can be trumped
2. cultural: respecting cultural differences
3. spiritual
- cannot ignore political context within which human rights are practiced
Ignatieff, “Human Rights as Politics and Idolatry”
general decline of human rights (age of huamn rights over?)
- war against terror lacks in HR
- disagreements about what constitutes a good life (cultural differences)
- embraces minimal arrpach
deliberation and discourse (over rules) as human rights culture
- problem with moral trump cards
- problems: minimalist rights is not obvious, out of sync with reality
leaves little room for socio-economic rights (hard to take advantage of political/civil rights without socio-economic tirhgt)
argues military intervention on behlaf of HR undermines their legitimacy
- as opposed to renforcing respect
- inconsistent with minimal list (ex: intervention during genocide)
weak states violate rights
hypocracy of US HR violations vs. reality
Schachter, “Human Dignity as a Normatice Concept”
dignity as both subjective and objective (problematic)
implication: force of rule incompatible with dignity
- represents ideal
- dignity as not neutral
- human rights and dignity evolved at the same time (cannot be causal relationship)
human rights are alienable (government authority to grant and/or restrict)
biggest problem: intrinsic worth (dignity) is not reducible to human rights
- dignity cannot be used as foundation for HR
- not all issues that pertain to dignity should be/are HR (e.g. respect)
Waldron, “Is Dignity the Foundation for Human Rights?”
treats dignity as a status
- dignity and rights have same status
- dignity is one of the cuases of human rights, but NOT THE ONLY CAUSE
gives no definition of digntiy (compatible with pluralism BUT too vague to justify all human rights)
highlights problems with dignity approaches
McCrudden, “Human Dignity and Judicial Interpretation of Human Rights”
dignity ecoked in judicial system
- used in domestic law
- due process clause, abortion, free speech
judicial system pervaded by dignity
Nussbaum, “Human Dignity and Political Entitlements”
links capabilities argument to human dignity
dignity as an important, central concept
- not culturally specific, clear understanding
rational capability is the source of equal worth and the source of dignity
- parallels Kant–>human beings as ends, equal respect
- egalitarianism in the stoic concept of dignity
need to provide context in which rationality is needed to provide dignity
rejects the protection of dignity through rights
- need to look at capabilities
1. like
2. bodily health
3. bodily integrity
4. sense, imagination, thought
5. emotions, attachments
6. practical reason, critical reflection
7. affiliation
8. concern for animals and nature
9. laugh, play, enjoy recreational activity
10. control over wants and material
need to secure capabilities in order to achieve dignity
three basic economic rights in the Universal Declaration of human rights
- adequate standard of living (25)
- employment without discrimination (23)
- basic income guarantee (right to security in event of old age, unemployment, etc.) (25)
Office of the United Nations High Commissioner
commitment to addressing global poverty
Hertel & Minkler, “Economic Rights: The Terrain”
subjected to harm–>state/global community has political obligation
- legal system based on harm
- not universal (states has difference capabilities)
freedom only through economic rights (but are subjected to politics/negotiations)
socio-economic violations cannor be protected by judiciary without being thought of as right (policy issue)
- without protection/recognition of SER, there is no way to enforce
link between socio-economic & human (civil and political) rights
- close enough in motviation
- right to development–>empower poor
do not provide limit on who can be held accountable
categories of accountability
1. judicial: most problematic, not uniform understanding (development of different states)
2. quasi-judicial: international treaties
3. administrative: assessment of poverty level and if state is doing enough
4. political: political process/repercussions to enforce
Moyn, “Human Rights in the Age of Inequality”
connection of socio-economic right with general economic idea of neoliberalism
- counterargument: trickle-down economics
argument is neoliberalism promotes economic growth and therefore it is not in the state’s interest to secure more than minimal welfare
- meaning no socio-economic rights (not compatible)
- pessimistic because right are contrary to neo-liberalism
- this is disproved in certain states (Nordic countries)–>argument is not sustainable
Neo-liberalism
Friedman
- free trade, lower taxes, free market (decreased regulations) = economic growth
- protect freedom is most foundational
- modest welfare state (don’t impose on freedom)
- corporations maximizing profits benefits society
Universal Basic Income
~$1,000 per month
- no requirement, for everyone
- from taxes, redistribution
- cut back on bureaucracy
- not a right, impossible in the US right now
- minimizing poverty, not replacing
Cranston, “Are There Any Human Rights?”
socio-economic rights are not as fundamental/important as civil & political rights
- SERs detract from the importance of HR
- being on the same level trivialized HR
SERs are impossible to secure & translate into positive law or quantifiable judicial action
- SERs can be MORAL RIGHTS but should not be human rights (different levels
How to distinguish a Human Right
- test of practicality: need to be achievable & practical (tangible rights and duties) civil & political rights pass
- test of genuinely universal moral right: moral right applicable to people in all situations [SERs don’t pass because rights are employable to only certain classes, purposefully misconstruction of the right to holiday (employment criteria)]
- not of paramount importance?: suggests SERs only give pleasure and don’t relieve stress (no correlation, does not explain, no reason civil & political rights pass)
Shue: argument against Cranston
civil & political rights AND socio-economic rights both need positive duties
- creation of justice system to enofrce civil/political rights
both rights imply negative and positive duties
- cannot be used as a distinction
- concludes socio-economic rights are basic human rights
political & civil rights require similar redistribution/taxation that socio-economic rights do because that is what funds the justice system
- therefore, both are basic rights
Shue, “Basic Rights”
argues for three basic rights: liberty, security, subsistence rights
- cannot enjoy other rights without these
subsistence rights are both positive and negative & security rights aren’t solely negative
basic rights are a subset of moral rights–>moral rights = basic rights if and only if
- moral right has these three components
1. rational basis for justified demand
2. actual enjoyment
3. socially guaranteed against standard threats
- other conditions of a basic right
1. everyone has a right to something, A
2. something, B, is necessary for A
3. therefore, everyone is entitled to B & A
PROBLEM: basic rights depend on preexsisting recognition of these basic rights
- do not have justified demant before they are 1) socially guaranteed; 2) actually enjoyable/accessible
each basic right has three duties
1. avoid deprivation (negative)
2. protect from deprivation (positive)
3. aid the deprived (positive)
- makes socio-economic rights (subsistence) no more burdensome than civil & political rights (also entail positive duties)
Neier, “Social & Economic Rights: A Critique”
right = contract between citizen and state
- rights are only meaningful when they’re enforced and realized
- cost of enforcing political & civil right is much lower than enforcing socio-economic rights
- depends on judicial system–>might inctrude on democratic component of state
tries to distinguish between rights that are enforced through the judicial system and rights subjected to democratic process (legal vs. political)
- socio-economic rights are politices/subject to politices–>democracy determines society’s redistribution desires, public safety & democratic
- deterined through public debate
- courts only interpret laws
- ex: education, housing not in Constitution–>treat socio-economic rights like policy, overreach to enforce without vote
capabilities of states are different, thus difference in socio-economic rights while civil & political rights are universal
- undermines civil & political rights to treat them as equal
civil & political rights NOT subject to debate, socio-economic rights are because of differing capabilities of states
- civil & political rights enable democracy–>socio-economic rights determined within democracy
problems:
- some countries do not secure civil & political rights
- limits Constitutional interpretation by judiciary
Okin, “Liberty & Welfare”
human rights are a subset of moral rights
- moral rights have moral force in content–>right to certain goods & freedoms essential to human existance
- not dependent on political process or recognition
argument based on equality (most fundamental)
- references to Gewirth’s agency argument
three universal shared needs/capacities combined with agency to justify argument
1. physical need (shelter, clothing, food, etc.)
2. physical security (free of bodily harm)
3. equality (implies respect of humanity)
long, challenging list–> limit by emphasizing those rights that are lacking/limited, determined by agency standard
- most important capacities:
1. ability to make choices
2. capacity to learn and benefit from that learning
3. capacity for having relations
needs/capacities imply rights
- socio-economic rights shouldn’t be prioritiexed when compared to civil & political rights
Rawls, “The Law of Peoples”
through experiment: laws of peoples
- 8 components to theory of global justice
1. peoples are free and independent
2. peoples are to observe treaties
3. peoples are equal according to agreements that bind them
4. peoples are to observe non-intervention (self-defense only)
5. peoples have a right to self-defense
6. peoples respect/honor human rights
7. peoples follow just war theories (restrictions on war)
8. people have duty to assist other peoples (not part of international law)
liberal peoples: liberal constitution, rule by majority/democracy
decent peoples: internally not as just, well-ordered and accepted as members of international society
- must recognize core list of human rights = subsistence, security, sufficient measure of liberty & conscious, personal property, equality before law (tries to accomidate cultureal differences)
liberal societies should’t criticize decent societies
-treat equally and not interfere
outlaw states: don’t secure basic human rights, may be aggressive
burdened states: still developing, don’t have institutions to protect human rights
- obligation to help these states become well-ordered
benevolent absolutist states: honor human rights, people denied meaningful role in political decisions
argues that states has an obligation to help other states, but these are limited to institutional building
- global justice limited to providing aid
- establish institutions for stability
Risse, “How does the Globa Order Harm the Poor?”
global order causes harm–>what kinds of duties do rich countries have towards poor countries?
institutional thesis: growth and prospertiy depend on the quality of institutions
- no rule of law–>unable to enforce contracts–>unable to participate in global market
- main/best explanation
geographical thesis: prosperity depends on natural resources
- counterexample: Japan
integration thesis: propserity depends on global market integration and ability to participate
going of institutional thesis–>harm principle relies on resources
- HARM1: general harm (broken, shattered)
- HARM2: undermine interest of state (no redistribution, only aid)
- HARM3: violating rights of state (redistribution)
HARM3 implies common/joint ownership of world’s resources (no justification for this THUS no violation of rights)
- condition of HARM2 is met
- richer states need to supply aid (same conclusion as Rawls)
Nagel, “The Problem of Global Justice”
global justice is a fantasy, no global institutions
imposing redistribution is a villation of state’s freedom and sovereignty
- ceorsion
- justice demande sovereignty–>only at domestic level
only a state can claim political legitimacy–> enforce through legal authority
- no political legitimacy, no justice
no global instutions–>no global justice
reality: multiple global instutitions, different levels of enforcement
Buchanan, “Rawls’ Law of Peoples”
argues that in the though experiement people would come up with more desires of states…
1. principle of equal opportunity (instutitions run by most powerful states, more opportunities for participation)
2. principle of democratic participation (limit disproportionate power of certain states)
3. principle of limiting economic opportunity (demand redistributive justice)
tried to make global justice sphere like domestic sphere
- redistribution
- greater democratic representation in international institutions
- would require high(er) level of trust
