Enforcing the Human Rights of Citizens and Non-Citizens in the Era of Maastricht: Some Reflections on the Importance of States

This article explores the impact of globalization in the context of human rights enforcement within the European Union. It argues that despite the growing impact of transnational forces and supranational institutions, national mechanisms are still crucial in enforcing international obligations, so that states remain critical players rather than diminishing entities. The article considers the development of human rights as a fundamental norm within the European Union, and explores the relevance of this norm for third country (i.e. non-European) nationals. It argues that restrictionist policies designed to curtail immigration and exclude asylum seekers override international human rights obligations voluntarily entered into by the European member states. Even the concept of European Union citizenship, designed in part to address the rights deficit within Europe, has not so far created a base of fundamental rights capable of trumping state interests, but rather functions primarily as an exclusionary concept directed against non-Europeans.     

Human rights in a global ecumene

How should we understand the cultural politics that has surrounded the development of international human rights? Two perspectives frame contemporary debate. For ‘cultural particularists’, human rights are western artefacts; alien to other societies, and an inappropriate basis for international institutional development. For ‘negotiated universalists’, a widespread global consensus undergirds international human rights norms, with few states openly contesting their status as fundamental standards of political legitimacy. This article advances an alternative understanding, pursuing John Vincent's provocative, yet undeveloped, suggestion that while the notion of human rights has its origins in European culture, its spread internationally is best understood as the product of a ‘universal social process’. The international politics of individual/human rights is located within an evolving global ecumene, a field of dynamic cultural engagement, characterized over time by the development of multiple modernities. Within this field, individual/human rights have been at the heart of diverse forms of historically transformative contentious politics, not the least being the struggles for imperial reform and change waged by subject peoples of diverse cultural backgrounds; struggles that not only played a key role in the construction of the contemporary global system of sovereign states, but also transformed the idea of ‘human’ rights itself. In developing this alternative understanding, the article advances a different understanding of the relation between power and human rights, one in which rights are seen as neither simple expressions of, or vehicles for, western domination, nor robbed of all power‐political content by simple notions of negotiation or consensus. The article concludes by considering, in a very preliminary fashion, the implications of this new account for normative theorizing about human rights. If a prima facie case exists for the normative justifiability of such rights, it lies first in their radical nature—in their role in historically transformative contentious politics—and second in their universalizability, in the fact that one cannot plausibly claim them for oneself while denying them to others.     

Imagining Humane Realism: Moving from Sacred Secularism toward a Pragmatic Theory of Human Rights

Abstract

The purpose of this article is to problematize secular humanistic conceptualizations of human rights by challenging the absolutist and supposedly irreligious foundations on which they rest. In doing so, this piece will adopt the position that secular humanism is, in fact, a religion, and, as such, its dictates concerning human beings and the proper treatment thereof are logical byproducts of a very peculiar "modern" religious faith—a religion, as it were, that places humanity at the center of its worship—and, therefore, are no less arbitrary than the overtly religious dogma it rejects. By exposing the all too confident moral authority that secular faithful bestow upon themselves and the will to judgement that is so prevalent in modern humanistic ideology, this article hopes to create a space for a re-imagining of human rights that is less authoritarian and more open to self-criticism than the modern, secular movement.     

Calvin and Natural Rights

Abstract

This article applauds the recent rise of scholarly attention to studying the relation of religion to natural rights in general and Calvinism in particular. Against the strong belief in some quarters that appeals to nature, including the idea of rights, do not play a significant role in Calvin's thought, the article concurs with recent (and some not so recent) work to the contrary, arguing that such appeals do occupy an important, if ambiguous, place for Calvin. However, the article resists explaining the variations in his thought as the result of changing interpretations over time. Rather, it is contended that these matters were a source of tension throughout Calvin's career. He struggled not so much with the question of the natural knowledge of rights, but of the ability to choose to act on that knowledge. In conclusion, the article hints that Calvin's ambivalence on this issue sowed the seeds for significant divergence among his descendants.     

Protecting Human Rights Through Constitutional Adjudication ‐ Jordan as a Case Study

This article aims at defining the role of constitutional courts in protecting the fundamental human rights of individuals, by relating the importance of constitutional judicial review and the established international standards related to the way it is performed. The study also provides an in‐depth analysis of the structure and working mechanism of the new constitutional court in Jordan with regard to its main functions described in the constitution of providing oversight of the constitutionality of laws and regulations in power, and interpreting provisions of the constitution. The study concludes that current statutory provisions with respect to the court proceedings and the method of undertaking its judicial work serve as safeguards that strengthen the role of the court in promoting individuals’ human rights. The study defines a vision of what is anticipated from the new constitutional court of Jordan and other courts in the field of defending human rights from the contemporary threats the world is facing, which only serve to increase fears among individuals that their basic rights are subject to serious attacks and violations.     

Roger Scruton's Conservatism and the Liberal Regime

Although Roger Scruton insists on the incompatibility of his conservatism and the fundamental liberal principles of individualism and consent, his political thought has much in common with classical liberal constitutionalism. This essay explores these relationships while arguing that particularly Locke's constitutionalism is more compatible with Scruton's ideas than he allows. Specifically, Scruton argues that authority necessarily precedes any individual claims, but Locke's civil society, in fact, subordinates individual rights to political authority and common goods. Similarly, Scruton's insists that the state is an end rather than a means, but his own account of the conditionality of allegiance approaches Locke's understanding of legitimacy in the practice of civic association. This narrowing of the differences suggests that a conservative teaching could begin with an education in liberal constitutionalism rightly understood.     

Liberation from the Weberian Iron Cage: Pierre Manent on Max Weber

Abstract

In this article I contend that conventional social contract theory is self-referentially incoherent. Conventional contractarianism therefore fails to provide an adequate foundation for the authority of the state and for the obligation of citizens to obey. The insistence on consent for legitimate political authority has usually been rendered in contractarian terms. Thus, the fall of conventional social contract theory seemingly entails that we should reject the principle of consent as well. Yet, the necessity of consent for the authority of the state and, concomitantly, for the obligation of citizens to obey seems to be an entailment of human equality. Thus, insofar as human persons are equal, the legitimacy of the state seems to require a foundation logically precluded to it. We are therefore confronted with a theoretical crisis. Even so, I will argue that we need not reject the principle of consent. The self-referential incoherency of conventional contractarianism results from its conventionalism. We can begin the work of salvaging the principle of consent from the demise of conventional social contract theory by erecting it upon the foundation of moral and ontological realism.     

Rewriting Australian Liberalism: The High Court's Jurisprudence of Rights

The High Court's recent rights jurisprudence has been unusually controversial. This paper argues that it is possible to evaluate the important developments in the Court's jurisprudence by examining the philosophical foundations of its understanding of rights. Relying on the distinction between utilitarian rights and natural and human rights, the paper discerns in the Court's traditional legalism as well as its more recent jurisprudence of implied rights a consistent commitment to a utilitarian conception of rights. In contrast, the paper argues that the Court's human rights jurisprudence represents a fundamental shift in its view of rights and judicial review, with far-reaching consequences for Australian constitutionalism and liberalism.     

No time like the present: Mindfulness,temporality and the therapeutics of kairos

While mindfulness is often portrayed as attention to the present moment, this article investigates its variable temporality in social practice. Using the example of mindfulness-based cognitive therapy (MBCT), designed to prevent relapse in recurring depression, mindfulness emerges as an ‘instantly effective’ intervention; as a discipline to be practised for one's future health; and as a perennial property of human attention, to be experienced in any present moment. Demonstrating that these entail different obligations and possibilities for mindfulness practitioners, I analyze the therapeutic timeliness of temporalization itself – arguing that there is a right time to live by certain notions of time.     

A chronic protection problem: the DPRK and the Responsibility to Protect

The Democratic Peoples' Republic of Korea (DPRK) is arguably the world's most chronic abuser of human rights. In an unprecedented move, a Commission of Inquiry established by the UN's Human Rights Council accused the DPRK government of systematic violations of human rights amounting to crimes against humanity. In so doing, the Commission succeeded in putting human rights in the DPRK on the global agenda. Within months the UN's General Assembly and Security Council had joined the human rights body in examining the issue. This article explains the emergence of this new engagement with human rights in the DPRK, showing its relation to the ‘Responsibility to Protect’ principle. It charts the growing sense of frustration felt at the lack of progress on human rights in DPRK and shows how this was manifested in the General Assembly's decision to pursue the Commission's recommendations and call on the Security Council to take concrete steps. Despite this, however, the article shows that there are powerful obstacles in the way of a more robust international approach to human rights in the DPRK and counsels a less confrontational approach focused on engaging China and building trust within the Security Council.     

Human geography without scale

The concept of scale in human geography has been profoundly transformed over the past 20 years. And yet, despite the insights that both empirical and theoretical research on scale have generated, there is today no consensus on what is meant by the term or how it should be operationalized. In this paper we critique the dominant – hierarchical – conception of scale, arguing it presents a number of problems that cannot be overcome simply by adding on to or integrating with network theorizing. We thereby propose to eliminate scale as a concept in human geography. In its place we offer a different ontology, one that so flattens scale as to render the concept unnecessary. We conclude by addressing some of the political implications of a human geography without scale.     

US grand strategy and national security: the dilemmas of primacy,decline and denial

The foreign policy crises that the USA has confronted under the administration of President Barack Obama have generated profound uncertainty about whether the USA can maintain what has been its consistent grand strategy since the end of the Cold War: primacy. The authors argue, drawing on a neoclassical realist framework, that this uncertainty has been driven not so much by fundamental changes in the international system itself, but rather by how such changes have been interpreted by the Obama administration and its critics. US grand strategy is now caught between approaches best described as the ‘decline management’ of the Obama administration and the ‘decline denial’ of president Donald Trump, which reflects the fracturing of the domestic ‘political support system’ that has underpinned primacy since the end of the Cold War.     

Role playing: a feminist-geopolitical analysis of the everyday workings of the Mexican state

Participatory methods are increasingly important to geographical research of ‘the everyday,’ yet their viability as a means to understand on-the-ground geopolitical processes has been less explored. This article contributes to the growing body of literature on participatory research in geography and feminist geopolitics by arguing for the use of a specific participatory tool – role play. We present an example of our employment of the technique in a case study on using the method during research with Central American immigrants living in the Mexico–Guatemala border city of Tapachula, Mexico. In doing so, we provide an in-depth examination of the implementation of role play, demonstrating its usefulness in revealing immigrant women's daily experiences with low- to mid-level state actors as they seek to avail themselves of their rights. We conclude that role play is particularly well suited to revealing these experiences due to its encouragement of creativity, embodiment through performance and facilitation of in-depth discussion of difficult subject matter.     

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 Ebb and Flow of Indigenous Rights Recognitions in Conservation Policy

At the 2003 World Parks Congress, diverse conservation actors called for the end of exclusionary approaches to conservation; recognition of customary forms of environmental protection; and restoration of losses to indigenous peoples whose lands were incorporated into protected areas without meaningful consent. A primary means to achieving such reforms has been the development of rights‐based approaches to conservation, expressed at the time as the better integration of human rights into the planning and management of protected areas. This article reviews the suite of publications that followed the 2003 Congress, each identifying the need for rights‐based approaches in conservation. All reviewed materials seek to operationalize human rights into conservation planning, but the review indicates a pattern of support for, then retreat from, and even a possible ‘backlash’ against, indigenous rights. The review also finds important differences in organizations’ ideas about who is responsible for protecting the environment versus who is responsible for protecting human rights. The authors draw from these findings a caution against the subversion of the original intention of rights‐based conservation to definitions that more fully serve conservation organizations’ own ends, based on the presumption that benefits (including rights) from environmental protection will eventually trickle down to people.     

Embracing the Language of Human Rights: International Women's Organisations,Feminism and Campaigns Against the Marriage Bar,c.1919–1960

This article considers four international women's organisations – the International Council of Women, the International Alliance of Women for Suffrage and Equal Citizenship, the International Federation of University Women and the Open Door International – and their campaigns for the right of married women to undertake paid work. It examines how each organisation adopted and engaged with the language of human rights in the late 1920s and 1930s. It is argued that after 1948, precisely because of its formal adoption by the UN, the language of human rights became less usable as a way to make the point that women still faced inequalities, and so other framings became more significant. This article contributes to historiographies on international women's organisations, offers a detailed discussion of their activism against the marriage bar, and challenges the conventional chronology of the concept and language of human rights.     

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.     

Indigenous free prior informed consent: a case for self determination in World Heritage nomination processes

Free prior informed consent is a critical concept in enacting the rights of Indigenous People according to the United Nations Declaration on the Rights of Indigenous Peoples. This paper outlines a case for the inclusion of free prior informed consent in World Heritage nomination processes and examines issues that are problematic when enacting free prior informed consent. Case research was used to analyse current issues in the potential nomination of certain areas of Cape York Peninsula, Australia. The authors’ reflexive engagement within this case offers insights into the praxis of developing a World Heritage nomination consent process. The outcomes of this research were: preconditions need to be addressed to avoid self-exclusion by indigenous representative organisations; the nature of consent needs to account for issues of representation and Indigenous ways of decision making; the power of veto needs to have formal recognition in the nomination process; and prioritising self-determination within free prior informed consent ensures the intent of the United Nations Declaration on the Rights of Indigenous Peoples. The paper contributes to the human rights agenda of Indigenous People and conservation management processes by helping address the issues that will be raised during a World Heritage nomination process.     

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.     

Penance and the law: the penitential canons of the Collection in Nine Books

This article examines the south Italian tenth‐century Collection in Nine Books, one of the first Italian compilations of canon law to incorporate a penitential handbook. It places this work in the context of other tenth‐century collections, investigating its sources, and the way in which its compiler chose to include penitential canons. It therefore contributes to the current debate about the purpose and function of penitentials as a genre in this period, arguing that they were probably intended to support the efforts of bishops to educate priests in the administration of penance.