Week 8 - power, the state, and human rights Flashcards
Francisco de Vitoria (1483-1546)
Spanish roman catholic philosopher, theologian, and just considered by scholars as the father of international law and human rights
Regarded as one of the first thinkers to argue that the Indigenous peoples of the Americas had natural rights
Delivered a series of lectures called Lecture on the Indians and argued that the Spanish crown had no right to enslave the indigenous people and that their sovereignty over the land should be respected. His theory of Indigenous sovereignty influenced the right to self-governance and political autonomy
Just war theory: people can fight those who aren’t Christian… Fransisco disagreed and advocated for rights for all even though they weren’t Christian.
What is the difference between justice and human rights?
We think of human rights as some sort of legislature, in so far human rights are about human dignity… these rights take shape in law. This understanding of regime of legislation as a legal institution poses a huge problem for those who have human rights infringed on
what Kingston says abt human rights
By privileging state sovereignty and legal nationality, the human rights regime created protection gaps for noncitizens and people at the margins. The forces of globalization exacerbate these shortcomings, including growing concerns about terrorism and global migration. The rise of nonstate actors, from terror networks to nongovernmental organizations (NGOs), also complicates traditional conceptions of membership
Justice is a process whereas human rights are a state of being
There is no such thing as being in between a human right
Political belonging is crucial
Refugees are presented as a form of political community which is those who are seeking re-entry into the political system
The problem with an exclusive legal framing of human rights is that it traps human rights within the nation-state system when in face human rights were designed to be outside the system.
This is an extremely dormant and docile view of human rights
When we trap human rights inside the nation-state system, human rights become a tool to check state power. However, human rights are not just a tool to check state power - human rights are a tool for revolutionizing the entirety of the nation-state system.
Human rights are revolutionary because they are about taking power back from the state and somewhere along the road they lost this potential of human rights.
The Magna Carta (1215)
The Magna Carta was originally created to limit the absolute power of King John of england
The Magna Carta effectively marked the shift from brute autocratic rule to the rule of law
Because the nobility was at the centre of the Magna Carta, one of its foundational principles was that no one could be deprived of their liberty or property without a free and fair trial
Like Roman law, the Magna Carta went on to influence documents like the English Bill of Rights (1689) as well as the U.S. Constitution (1789)
The universal declaration of human rights in 1948
Because of the UN system’s foundation on the sovereignty of states, the universal Declaration of Human Rights entrenches human rights to states.
Article 15.1 of the UDHR reads, that “everyone has the right to a nationality” WHY?
Paradoxical problem: are the human rights set out by the UN natural rights?
Thus robbing the revolutionary potential
In 1946 the UN created the commission of human rights, which was chaired by Elanor Roosevelt. The UN commission on Human Rights was tasked with drafting a document outlining fundamental human rights
Western nations brought ideas rooted in the Enlightenment which emphasises individual liberties by contrast nonwestern nations highlight collective rights
The adoption of the UDHR in 1948 (BIRTH OF HUMAN RIGHTS)
We have the first international document that comprehensively outlines fundamental human rights that are application to all people, regardless of nationality, ethnicity, or religion
The declaration established the global standard for human rights and laid the groundwork for future conventions
PROBLEM:
Insofar as human rights get incorporated into the state system, human rights stop being universal and human. They become local and political
This legal suspension of the normal order for the expansion of state power raises critical questions regarding the protection of human rights
State expansion can result in the permanent erosion of freedoms
human rights today
Human rights, when coopted by the state system, work like a state of exception in that everyone outside the state system is in exception to human rights.
Their lack of political belonging prevents them from accessing human rights
Our system no longer serves the interests of human rights. The very revolutionary potential of human rights, which caused the complete restructuring of great empires such as the US and France has become domesticated
As Gilabert (2018) writes, “Human rights are particularly relevant in the context in which there are significant asymmetries of power, but where these asymmetries exist the human rights project turns out to be especially difficult to realize” (375). And, at the center of these asymmetries of power is the state
Social movements are one of the avenues through which the revolutionary potential of human rights fan be revived and realized
Ancient Greece: Plato
HISTORY OF HUMAN RIGHTS
Myth of metals: particular categories within society and justice is based on these groups doing their duty within their social ranking. What is just is for you to do what the metal in your body tells you to do. The consequence: you are not born free, you are born into a predetermined system
Your rights are tied to your location in life
The Great Lie: the most important thing that keeps society running
Aristotle HISTORY OF HUMAN RIGHTS
Aristotle’s view is that humans are social beings who achieve their fullest potential within a community. Wehreas for Plato community is necessary to maintain justice to keep order for Aristotle community is necessary because it is human life itself
Four elements to Aristotle’s concept of natural justice:
1. The right to life
Individuals have the right to pursue their good and develop their virtues within the context of a community
Example: Spivak’s 1988 essay, “can the subaltern speak?”
2. The right to justice
Justice is a natural right in the sense that justice exists outside of social constructs and arbitrary laws
Aristotle distinguishes between distributive justice (fair distribution of resources based on merit) and corrective justice (rectifying wrongs). For Aristotle, each individual has the natural right to be treated justly according to their contributions and status within the community.
Young is for equity, Aristotle is for equality
3. The right to participate in governance
In his politics, Aristotle emphasizes that citizens have the right to participate in the political life of the state
Aristotle defines the citizen as one who shares in the administration of justice and in the holding of office
He goes on to argue that political participation is essential for achieving the common good and that citizens must engage in governance to fulfill their role in the community
Connects to social movements
4. The right to property
Individuals have a natural right to acquire and to use property
Property ownership is important for personal development and social responsibility, as it allows individuals to contribute to their communities
Example: South Africa’s constitution, particularly section 26, which addresses the right to housing
The American and French revolutions
BIRTH OF HUMAN RIGHTS
The Declaration of Independence of 1776 is what influenced the French Revolution and the Declaration of the Rights of Man and of the Citizens of 1789
Four ways through which these declarations influenced human rights
Emphasized the inherent rights of individuals
Laid the groundwork for modern democratic ideals
Principles came to be regarded as universal
Influenced the codification of individual rights in law
Labor rights and international humanitarian law BIRTH OF HUMAN RIGHTS
Industrialization… george orwell, the road to wigan pier
Labour rights become a foundation for humanitarian law because the poor working conditions of industrialization highlighted the need to protect human dignity and welfare worldwide
“We work because we have to” western ideals
Marxist ideals believe “we work because it gives us human dignity”
