Legal realism and human rights

This essay uses Schmitt's work to cast new light on the relevance of the American legal tradition known as ‘legal realism’ for the history and analysis of human rights. It does so by exploring several of Schmitt's most famous criticisms of international law and human rights, and then suggests how they might correspond with a widespread critical legal tradition in the 1920s and 1930s. This essay describes in detail two fundamental features of this tradition: historicism and realism. It concludes by suggesting that a return to some of these earlier law writers and texts might be a more substantive way to develop a constructive critical position in the fields of human rights and international law than an overreliance on the politically provocative (and problematic) rhetorical flourishes of Carl Schmitt.     

Women's Rights as Human Rights after the End of History

This article is based on the 2022 Gender & History annual lecture. It reconsiders the recent history of women's rights as human rights. The collapse of communism in Eastern Europe and the Soviet Union brought to an end a twentieth-century discourse of women's rights, understood not only as legal norms, but as a political language harnessed to a narrative of women as a collective subject progressing towards emancipation and equality. This was enabled by an international order in which human rights were tied to visions of self-determination, social rights and strong states, creating spaces for new subjects to make their voices heard in international law, albeit in particular and circumscribed ways. After 1989, women were again written into international law primarily as victims of violence, while the emergence of gender as a category of analysis challenged the notion of ‘women’ as a collective subject of rights. The story of women's rights, the article concludes, suggests that recent revisionist histories of human rights as a neoliberal utopia are only one part of a more complex human rights history.     

‘The Law is to Blame’: The Vulnerable Status of Common Property Rights in Sub‐Saharan Africa

The context of this article is the surge in large‐scale land acquisitions of African lands by local and foreign investors for commercial food, livestock, oil palm and carbon trading purposes. Involuntary loss of rural lands at scale is not new to Africa's majority rural poor, nor is it driven by a single factor. Historically inequitable land relations within communities, compounded by a century of capitalist transformation, take their toll. This study argues, however, that the weak legal status of communal rights is the most pernicious enabler in their demise, allowing governments to take undue liberties with their citizens’ lands, and particularly those which are unfarmed and by tradition held in common. While international acquiescence to abusive domestic law helps entrench the diminishment of majority land rights, the domestic laws themselves are principally at fault and necessarily the target for change. This legal vulnerability is explored here through an examination of more than twenty African land laws.     

Scientific whaling and how philosophy of science can help break the international deadlock

Despite widespread public interest on the topic of whaling, there is at present relatively little work on how philosophy might contribute to analysis of the status of whaling in international law. When philosophers have looked at the topic of whaling, they have confined their attention to a fairly narrow set of ethical questions, such as whether international law should permit certain forms of traditional indigenous whaling or extend legal rights to whales themselves. However, there is another important issue which has so far been largely neglected by philosophy, even though it is at the forefront of current international legal disputes over the status of whaling: the issue of so-called ‘scientific whaling’. This article considers the international legal dispute between Australia, New Zealand and Japan over the latter’s lethal harvesting of whales in the Southern Ocean, and the recent attempt at resolution by the International Court of Justice. On its face, this required that the Court demarcate ‘scientific’ from ‘unscientific’ activity; however, it effectively baulked at this task. The authors argue that this approach of the Court was unfortunate, and that demarcating science from commerce is not only achievable in philosophy, but might also inform international legal practice. Resolving this issue is important for genuine progress to be made in the current international stand-off over Japanese whaling in the Southern Ocean.     

Enhancing the mobility of collections and access to cultural heritage: immunity of cultural objects from seizure in Poland

This paper analyses, from the perspective of cultural policy considerations, the legal regime established by the recent Polish law on the immunity from seizure of cultural property on loan (2015). It deals with current trends of international museum exchange and explains the benefits and risks involved in cross-border loans of cultural material. This analysis is carried out by focusing on the actual practice and experiences of Polish museums, national and international regulations in force, and human rights considerations. The authors attempt to situate the Polish model for the protection of foreign cultural property on loan within the broader comparative context of the domestic legislation on museum exchange adopted in selected national jurisdictions. The article also offers a more general cultural policy discussion in the context of international museum exchanges of cultural material. Laws and policies facilitating such exchanges are weighed against other rights and interests encompassed in the protection of cultural heritage and the realisation of all human rights, including cultural rights.     

Political Philosophy and the Problems of International Order: Machiavelli,Kant, and Aristotle

Although international order is a consistent concern for both statesmen and citizens, it has received only rare attention from political theorists. In this essay I evaluate the contemporary international order in light of political thought, specifically with reference to Machiavelli, Kant, and Aristotle. Contemporary international order and its historical roots in the Peace of Augsburg find theoretical expression in the writings of Machiavelli, especially insofar as he advocates for overturning classical political thought. By rejecting classical political thought and the notion of natural right, along with Christian doctrine, Machiavelli set the stage for the political absolutism that underlies the concept of state sovereignty, as it was expressed at Augsburg. Kant, in rejecting Machiavelli's political absolutism, prepared the ground for international human rights. In doing so he provided theoretic ground for the authors of the Universal Declaration of Human Rights. But while human rights may provide a welcome balance to state sovereignty, they undermine international order insofar as international order relies on state sovereignty. I suggest that the current theoretical and legal inconsistencies that come about from making room for both state sovereignty and human rights may have their origins in modern political theory's rejection of Aristotelian political thought.     

Carl Schmitt on land and sea

Carl Schmitt (1888-1985), one of the leading conservative legal thinkers of the Weimar Republic and Nazi Germany, is best known today for his critique of liberalism. Between the late 1930s and mid-1950s, Schmitt wrote numerous articles and two books addressing the mythical and geopolitical significance of land and sea. In recent years, these texts have begun to attract attention from historians as well as theorists. This article reconstructs the origins of Schmitt's theories about land and sea, and shows how they developed in the context of his efforts to delegitimize the British Empire and justify the persecution of Jews. It also explains how Schmitt selectively misread the history of maritime law in order to critique the ‘freedom of the seas.’ Finally, it reveals that the meaning Schmitt ascribed to ‘the opposition of the elements of land and sea’ changed dramatically to suit his political needs. For all their evocative qualities and insights, Schmitt's texts on land and sea do not constitute a coherent theory, but rather a shifting field of polemical positions in search of theoretical support.     

The Ernest Gellner Nationalism Lecture: The Soviet Union,self‐determination,and the creation of the postwar human rights system

The USSR played a key role in the establishment of the post‐World War II human rights system despite its repressive and even murderous domestic record. It forged an alliance with the countries of the Global South in support of decolonization, self‐determination, and social and economic rights, policies opposed by liberal states like the United States, Great Britain, and France. These positions were deeply rooted in the socialist tradition. Moreover, when a human rights movement emerged in the mid‐1960s, its members—in its origins overwhelmingly from the intelligentsia—called not for the overthrow of the Soviet Union but for the fulfilment of Soviet law. The language of rights, proclaimed with such flourish in the 1936 constitution and its successor in 1977, served as the weapon hurled by dissidents as they called on the Soviet government to respect freedom of speech and assembly, and national rights, including the right to emigrate. In turn, the international human rights movement developed from the 1960s to the 1990s largely through support for the Soviet dissident movement, Amnesty International, and Human Rights Watch prime examples. The Soviet experience is critical to any global history of human rights.     

The Viability of the United Nations Approach to Economic and SocialHuman Rights in a Globalized Economy

The United Nations approaches economic and social human rights through a framework of legal positivism. States are called on to respect, protect and fulfil their legal obligations contained in international human rights law. The state remains ultimately responsible for guaranteeing these economic and social human rights. This article explores the viability of this statist approach in this era of economic globalization. The less developed countries often face economic deprivation caused not by state action/inaction but by the global economic system itself. In many key respects states appear to be losing their capacity to regulate their economies and labour markets effectively. Yet despite the shrinking nature of our global community, the state is still central in the creation of the proper environment for the fulfilment of these rights. This article analyses the national strategies that governments can pursue to respect, protect and fulfil the economic and social rights of their citizens, and thus meet their international legal obligations.     

Australia,US torture and the power of international law

ABSTRACT

Australia cooperated extensively with the George W. Bush administration during the ‘war on terror.’ However, in doing so, Australia failed to condemn, and in some instances, condoned US torture and detention programs. Does Australia’s conduct demonstrate a failure of international law and human rights to constrain Australia’s actions? Although the Howard government was heavily criticised for failing to uphold human rights in the fight against terrorism, international law was not forgotten. This article argues that international law shaped Australia’s cooperation with the US. Australia strategically used international laws to legitimise its cooperation with the US in the face of evidence of US torture. International law was not dismissed to pursue national security interests but used to legitimise Australia’s security policies.     

The fusion of law and ethics in cultural heritage management: The 21st century confronts archaeology

Abstract

Archaeologists around the world face complex ethical dilemmas that defy easy solutions. Ethics and law entwine, yet jurisprudence endures as the global praxis for guidance and result. Global legal norms articulate ‘legal rights’ and obligations while codes of professional conduct articulate ‘ethical rights’ and obligations. This article underscores how a rights discourse has shaped the 20th century discipline and practice of archaeology across the globe, including in the design and execution of projects like those discussed in the Journal of Field Archaeology. It illustrates how both law and ethics have been, and still are, viewed as two distinct solution-driven approaches that, even when out of sync, are the predominant frameworks that affect archaeologists in the field and more generally. While both law and ethics are influenced by social mores, public policy, and political objectives, each too often in cultural heritage debates has been considered a separate remedy. For archaeology, there remains the tendency to turn to law for a definite response when ethical solutions prove elusive.

As contemporary society becomes increasingly interconnected and the geo-political reality of the 21st century poses new threats to protecting archaeological sites and the integrity of the archaeological record during armed conflict and insurgency, law has fallen short or has lacked necessary enforcement mechanisms to address on-the-ground realities. A changing global order shaped by human rights, Indigenous heritage, legal pluralism, neo-colonialism, development, diplomacy, and emerging non-State actors directs the 21st century policies that shape laws and ethics. Archaeologists in the field today work within a nexus of domestic and international laws and regulations and must navigate increasingly complex ethical situations. Thus, a critical challenge is to realign approaches to current dilemmas facing archaeology in a way that unifies the ‘legal’ and the ‘ethical’ with a focus on human rights and principles of equity and justice. With examples from around the world, this article considers how law and ethics affect professional practice and demonstrates how engagement with law and awareness of ethics are pivotal to archaeologists in the field.     

‘Human and nothing but human’: How Schmittian is Hannah Arendt's critique of human rights and international law?

Recently legal theorists have pointed out that whereas members of their profession often assume that post-war scholarship had broken with the past completely, political theorists have paid far more attention to questions of influences and continuities in their discipline. This also holds regarding the legacy of Carl Schmitt whose case both as a jurist and political writer is particularly pressing not only for intellectual historians, but also for discussants across a broad range of fields in law and political science. It is in this context that my paper examines Hannah Arendt's immediate critique of the Declaration of Universal Human Rights in 1948. I will juxtapose Schmitt's and Arendt's critiques, arguing that these display more than superficial parallels and yet conflict in their basic contentions. I also hope to show that discussing Arendt's critique in conjunction with Schmitt's allows us to pose some more general questions about the relevance and meaning of intellectual backgrounds and influences.     

When the personal becomes political: using legal reform to combat violence against women in Ethiopia

This article focuses on Ethiopia's first civil society organisation, the Ethiopian Women Lawyers Association (EWLA), which has been campaigning for legal reform to secure women's rights and address violence against women. Implementing legal changes to benefit women in Ethiopia is impeded by difficulties in using the formal legal system, by poverty and deeply embedded gender inequalities, by plural legal systems, and by entrenched cultural norms. However, the article argues that the most significant challenge is the increasing degree of authoritarianism in Ethiopian state politics, that this is crucial in determining the space for activism, and that this shapes the successful implementation of legal change. The research shows how women's activism around personal rights challenges public/private and personal/political boundaries and can be seen as a political threat by governments in contexts where democracy and rule of the law are not embedded, leading to repression of women's activism and hindering the implementation of measures to protect women's rights when states become more authoritarian. Little is known empirically about the impact of democratisation on the implementation of measures to protect women's rights in Africa. This article shows how the emergence of democracy and legal reform intersects with the emergence of women's rights, especially with respect to gender-based violence. It shows how trying to secure women's personal right to be free from violence through the law is profoundly political and argues that the nature of democratisation really matters in terms of the implementation of measures such as legal changes designed to protect women's rights.     

China,Natural Resources,Sovereignty and International Law

Abstract

This article explores China’s attitudes towards the regulation of key natural resources by international law, domestically and at the trans-boundary and international levels. It considers the impact of international law on China’s own practices, and the contribution of China towards shaping international law. The article suggests that popular conceptions of a relatively isolated, sovereign absolutist China do not accord with contemporary legal realities, including in its dealings with natural resources. While China’s construction of strong sovereignty shapes its attitudes towards legal regulation, practice also suggests that China adopts a nuanced approach which includes legal compromise, and a commitment to multilateral regulation or bilateral diplomatic settlement of issues previously within the competence of national governments. China is often an active and constructive participant in contemporary law-making, even if – like all countries – it also seeks to instrumentally use international law.     

Leibniz,Locke, and the Early Modern Controversy over Legal Maxims

This article investigates the context of a side line in Leibniz's critique of Locke on maxims. In an enigmatic and little-explored remark, Leibniz objects that Locke has overlooked some legal maxims that fulfil the function of ‘constituting the law’. I propose to read this remark against the background of the divergence between conceptions of legal maxims in the common law tradition and conceptions of legal maxims in the Roman law tradition. In a few remarks, Locke seems to echo the common law emphasis on customs and conventions expressed by legal maxims. According to such a conception, reason would mainly fulfil the function of subsuming particular norms under more general conventional norms. By contrast, Leibniz uses the Roman law idea that some ‘rules of law’ express demands of natural reason and, thereby, express principles constitutive of natural law. This is why he proposes to reform vague and confused ‘brocards’ used by jurists in order to identify sound maxims that provide a natural-law foundation for legal institutions.     

Abolition and Imperial Law, 1790–1820

Historians have represented the movement for the abolition of the slave trade as a turning point in international law, either characterising the formation of mixed commissions to adjudicate slave ship captures as elements of early human rights law or interpreting the treaty regime supporting the ban on the slave trade as marking a decisive shift towards positivism in international law. A closer look at the legal history of abolition suggests that such perspectives omit an important dimension: the ties between abolition and imperial legal consolidation. In exploring such ties, the article first examines prize law and its direct and indirect influence on calls for intra-imperial regulation of the slave trade, especially its effective criminalisation. Across the empire, efforts to ban the slave trade reflected and reinforced pressures to strengthen imperial legal authority by regulating and restricting planter legal prerogatives.     

‘That Moral League of Nations against the United States’: The Origins of the 1856 Declaration of Paris

The Declaration of Paris, signed by seven European powers on 16 April 1856, is almost forgotten today. Yet it marks the beginning of modern international law as we know it: multilateral treaties open for accession by all powers with the intention of creating new universal rules. Its extension of neutral rights to trade undisturbed in peace-time was a radical reversal of the centuries-old British tradition of extensive belligerent rights. But there is no convincing explanation why Britain signed this treaty and lobbied for its global acceptance. This article shows that the Declaration was a package deal in which Britain accepted broader neutral rights but gained the abolition of privateering. Privateering was no anachronism, but the linchpin of US strategy in case of a conflict with Britain. The Declaration of Paris closed most of the world's ports to privateers and thus ended the practice. The Declaration was also the first multi-lateral law-making treaty and marks the invention of the main instrument we use today to create international law.     

Polygamy and Legislation in Contemporary Iran: An Analysis of the Public Legal Discourse

The purpose of this article is to analyze the interaction between different interpretations of Islamic jurisprudence in Iran and state law. It focuses on the public legal discourse about the new Family Draft Law in 2007–08, especially Article 23 regulating polygamous marriages and removing necessity for the first wife's permission. The participants in this public legal debate, which took place on the internet and in the media, were civil society organizations, especially women's organizations, the Shiite clergy, and state representatives. The article argues that even in a non-democratic, theocratic state such as the Islamic Republic of Iran, public discourse promoted by the named actors can challenge and influence state legislation. The removal of Article 23 from the Draft confirms this argument, but in the law of 2013 the requirement for the first wife's permission is not found. By looking at the arguments brought forward in the public discourse, the article demonstrates that the arguments are mainly “Islamic,” and none refers to international human rights, as this seems to be a kind of taboo in the political discourse.     

Land as fictitious commodity: the continuing evolution of women's land rights in Uganda

In sub-Saharan Africa, colonial influences have altered traditional practices as a way to manage that which Polanyi labeled as ‘fictitious commodities’ of land, labor, and money. Land has now become a highly marketable commodity and an intrinsic part of the global economy. Over the past century, Uganda's land rights have evolved from communal rights to that of male-dominated, individual ownership practices that have excluded women. Despite constitutional provisions, which confer title of both a deceased husband's property rights and equal rights to property within a marriage to a wife, postcolonial patriarchal tradition prevails. This article examines historical changes in land rights in Uganda and discusses the impact of shifts in land rights from communal ownership to individual tenure, altering power structures and attempting to create marketable land title. The Ugandan women's movement's opposition to policies and implementation of laws that exclude women has been unable to facilitate the required changes in unbiased access to land rights, despite apparent victories in revisions to the letter of the law. Situated within contemporary interpretations of tradition and pressures of market demand, this article shows that women's access to landownership and use are restricted by misinterpretation of traditional law and a lack of enforcement of contemporary legal rights. To illustrate the impact of a lack of access to land, this article examines an empirical case study of widowed subsistence farmers in southern Uganda. Women in Uganda continue to lose ground, quite literally, decreasing the possibility of gender equity in terms of land.     

论历史性权利在海洋划界中的作用

历史性权利在海洋划界中作用的法律基础既包括条约法也包括国际习惯法。历史性权利分属不同的法律基础,使其在海洋划界中发挥不同的作用。以《联合国海洋法公约》为代表的条约法,规定了历史性所有权或历史性海湾在领海划界中的优先作用,明确了历史性所有权、历史性水域在海洋划界争端解决程序中具有任择性例外的作用,并确立了历史性捕鱼权在群岛水域划界中具有特别适用的功能;而国际习惯法确立的历史性权利规则在海洋划界中的作用,虽然目前国际法上尚无明确规定,但在国际实践上,其主要以并行适用方式发挥作用。历史性权利在海洋划界中的不同作用,为未来我国与周边国家尤其是南海周边国家海洋划界提供国际适法导引。