THE FORGOTTEN FREEDOM: FREEDOM FROM FEAR

2010 ◽  
Vol 59 (3) ◽  
pp. 543-570 ◽  
Author(s):  
James Spigelman
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Case Law ◽  
The State ◽  
Physical Security ◽  
Legal Thought ◽  
Human Rights Treaties ◽  
Rights Discourse ◽  
Human Rights Discourse ◽  
Difficult Issue

AbstractFreedom from fear, expressly recognized in the foundational human rights treaties, has been forgotten in human rights discourse. Fear can have profound behavioural impacts. Without recognition of the importance of freedom from fear, the fulfilment of many human rights is compromised, particularly physical security. Politico-legal thought, from Montesquieu and Blackstone, has long identified the significance of security of the person and the tension between liberty and security. Comparative exploration of contemporary case law reveals disparate approaches to the recognition of security of the person as an individual right which the State is obliged to protect. Increasing the salience of security of the person and the dimension of freedom from fear in human rights decision making raises the difficult issue of balancing conflicting rights.

BACK TO THE FUTURE: THE IMPERATIVE OF PRIORITIZING FOR THE PROTECTION OF HUMAN RIGHTS IN AFRICA

2003 ◽  
Vol 47 (1) ◽  
pp. 1-37 ◽  
Author(s):  
Chidi Anselm Odinkalu
Keyword(s):  
Human Rights ◽  
The State ◽  
Recent History ◽  
Human Reality ◽  
Protection Of Human Rights ◽  
History Of ◽  
Group Survival ◽  
Rights Discourse ◽  
Political Economic ◽  
Human Rights Discourse

The quite complex problems of human and group survival in Africa do not easily lend themselves to diagnosis or solutions within the human rights frame of analysis. There are several reasons for this. Some arise from the recent and not–so–recent history of the continent, others are associated with the foundations and formulation of the human rights framework itself, and the rest with the orientation of those governments, individuals, and organizations involved in or entrusted with translating the promises of human rights into human reality. The invidious dichotomies within human rights discourse between civil, political, economic, social, cultural, and collective (solidarity) rights or the so–called “categories” or “generations” of human rights, with the attendant and implicit hierarchy among these categories of rights, fails to resonate with most people around the continent for whom contact with the state is a frightening prospect that defies such convenient intellectual categories.

scholarly journals The 2013 Elections in Zimbabwe: End of an Era for Human Rights Discourse?

2013 ◽  
Vol 48 (3) ◽  
pp. 99-110 ◽  
Author(s):  
Cornelias Ncube
Keyword(s):  
Human Rights ◽  
The State ◽  
Self Determination ◽  
Coalition Government ◽  
Political Rights ◽  
Strained State ◽  
Civil And Political Rights ◽  
Rights Discourse ◽  
The Right ◽  
Human Rights Discourse

This paper examines the implications of Zimbabwe's 2013 harmonised elections on the opposition's continued deployment of the rights-based discourse to make moral and political claims against and demands of the state. Since 2000, two polarising strands of the human rights discourse −1) the right to self-determination and 2) civil and political rights – were deployed by the state and the opposition, respectively, in order to challenge extant relations and structures of power. The acutely strained state–society relations in post-2000 Zimbabwe emanated from human rights violations by the state as it responded to challenges to its political power and legitimacy. However, the relative improvement in the human rights situation in the country since the 2009 coalition government came into office, and during and since the recently concluded peaceful 2013 elections – the flawed electoral process itself notwithstanding – suggests a need for alternative new ways to make moral and political demands of the state in the future.

scholarly journals Determinasi Eksistensial Pemikiran Hukum Islam Abdullahi Ahmed An-Na‘im

2015 ◽  
Vol 9 (1) ◽  
pp. 110
Author(s):  
Tholkhatul Khoir
Keyword(s):  
Human Rights ◽  
Sociology Of Knowledge ◽  
Social Reality ◽  
Academic Training ◽  
British Colonialism ◽  
Legal Thought ◽  
History Of ◽  
Rights Discourse ◽  
Human Rights Discourse

<p>This article deals with the Islamic legal thought of Abdullahi Ahmed an-Na‘im from the sociology of knowledge approach. According to this approach, knowledge (including religious interpretation and practices) is sociologically, economically and politically determined. This article aims to understand how an-Na‘im’s Islamic legal thought is determined by his existence within social reality. This article concludes that an-Na‘im’s thought is determined by (1) socio-political and legal reality in Sudan, (2) Mahmoud Mohamed Taha who influenced his ideas, (3) British milieu, and (4) American environment which is politically secular, Islamo-phobic, racist, discriminative and intolerant towards Afro-Americans. The maturity of an-Na‘im’s thought is particularly influenced by the history of British colonialism in Sudan and his academic training in England, a place where human rights discourse develops as the result of post-enlightenment humanism and some major revolutions in Europe.</p>

scholarly journals Human-Rights Discourse: An Examination of Shifting Conceptions of Human Rights within the Netherlands

2018 ◽  
Vol 5 (1) ◽  
Author(s):  
Declan Wicks
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Free Speech ◽  
News Coverage ◽  
Case Law ◽  
Identity Change ◽  
Cultural Compatibility ◽  
Western Migration ◽  
Rights Discourse ◽  
Human Rights Discourse

The thrust of this research focuses on the dynamic ways in which conceptions of human rights, culture, and identity change in relation to increased inflows of allochthonous, non-western migration. Focusing on the Netherlands, this paper examines the Dutch public’s varied responses to migration – whether welcoming or antipathic – through two separate frames. First, an analysis of case law that focuses on the Dutch government’s response to personal family law within Islamic religious situations and the “free-speech trials” of Geert Wilders is undertaken to examine situational responses to perceived changes in culture and identity. Second, an exploration of migration within news coverage is attempted with an understanding that news framing – while “uncovering” certain truths, creates fictions through the single-storied fetishization of, in this case, the incompatibility of migrant culture with Dutch culture. Finally, this research concludes that human rights – while not explicitly discussed within public contexts – constitute a process-oriented part of the Netherland’s “culture of rights” while still at risk of being ignored in larger debates surrounding cultural compatibility.

scholarly journals A new Convention on the human right to development: Putting the cart before the horse?

2020 ◽  
Vol 38 (2) ◽  
pp. 84-93
Author(s):  
Nico Schrijver
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Added Value ◽  
Human Right ◽  
Right To Development ◽  
Human Rights Treaties ◽  
Draft Convention ◽  
Rights Discourse ◽  
The Right ◽  
Human Rights Discourse

In this column I discuss the background, evolution, legal status and functions of the human right to development, with special reference to the proposed draft Convention on this subject, published by the Human Rights Council in January 2020. It notes the widely diverse views on the added value of the right to development. In my view, taking the discussion on the formulation, consolidation and implementation of the right to development seriously, is important to create a balance in the international human rights discourse by showing a genuine interest in matters raised for long by developing countries. This could serve the cause of the universality, indivisibility and interdependence of the global human rights architecture. However, it is questionable whether the adoption of a new Convention on the Right to Development would serve the cause of the right to development. The right to development is already well rooted in the existing core human rights treaties and has the potential to play a key role as a cluster right, an integrative right and a bridging right. Therefore, I suggest some alternative avenues for realising and operationalising the right to development.

scholarly journals The Evolving Role of the Human Rights Factor within the State of Necessity Test in Investment Arbitration

2019 ◽  
Vol 13 (1) ◽  
pp. 12
Author(s):  
Dmitry V. Krasikov
Keyword(s):  
Human Rights ◽  
International Investment ◽  
The State ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Resolution System ◽  
Protection Of Human Rights ◽  
Rights Discourse ◽  
Human Rights Discourse

The discussion on increasing the legitimacy of international investment law largely overlooks the potential of the state of necessity, as a circumstance precluding wrongfulness of States&rsquo; conduct under general international law, for the protection of human rights. The present article deals with the practice of international investment arbitration in cases involving Argentina in connection with its economic crisis of 1998&ndash;2001, in which it raised the necessity defense and appealed, inter alia, to human rights. The article concludes that, as a rule, the human rights factor did not play a noticeable role for resolving the relevant disputes. The human rights discourse either had no adequate place within the merits of the disputes, or the tribunals did not take the relevant arguments seriously. The human rights argumentation tried itself within different parts of the Argentina&rsquo;s defense, including various elements of the necessity test, but without meaningful effect. The Award in the case of Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic has demonstrated the perspective of recognizing the significance of the human rights factor in the context of &ldquo;the only way&rdquo; element of the necessity test: this element can unleash the potential of human rights in the disputes involving the necessity-based defense and provide the tribunals with tools capable of taking human rights more seriously in the context of investment disputes concerning emergencies. The Urbaser Tribunal position is an evidence of the evolving and expanding role of the human rights factor within the necessity test but substantial clarification of this test at the doctrinal, practical and political level is still needed to increase the legitimacy of international investment dispute resolution system.

Self-Proclaimed Human Rights Heroes: The Professional Project of Israeli Military Judges

2021 ◽  
pp. 1-33
Author(s):  
Smadar Ben-Natan
Keyword(s):  
Human Rights ◽  
Postcolonial Theory ◽  
The State ◽  
Palestinian Territories ◽  
Multimethod Approach ◽  
Rights Discourse ◽  
Professional Project ◽  
Human Rights Discourse ◽  
Legitimacy Crisis ◽  
Depth Interviews

This article explores the cooptation of human rights discourse by looking into how Israeli military judges in the Occupied Palestinian Territories use human rights as professional capital. Previous research into human rights arguments legitimizing the Israeli occupation remained confined to a unitary image of the state. Here, I dissect the separate professional project of military judges. Optimizing a self-congratulatory argument, judges portray themselves as human rights heroes of Palestinians. But while independent judicial activism would criticize human rights violations by the state, military judges use human rights as synonymous with legal professionalism, while avoiding criticism and sidestepping human rights’ challenge to state power. Using a multimethod approach including analysis of judicial decisions, academic articles by military judges, and in-depth interviews, I argue that between 2000 and 2010, Israeli military judges were responding to a professional legitimacy crisis by what I call mimetic convergence. Relying on new institutionalism and postcolonial theory, mimetic convergence produces belonging and mobility for a professional subgroup that experiences alienation in the “colony” through convergence with the specific characteristics of the legal community of the “metropole.” Mimicking the state instead of criticizing it permits the two projects— promoting military judges professionally and legitimizing the state’s colonial occupation—to coalesce.

Housing as a Basic Human Right: A Reflection on South Africa

2019 ◽  
Vol 31 (1) ◽  
Author(s):  
Mziwandile Sobantu ◽  
Nqobile Zulu ◽  
Ntandoyenkosi Maphosa
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Social Development ◽  
Urban Poor ◽  
Active Role ◽  
Human Right ◽  
Economic Rights ◽  
Development Agenda ◽  
Rights Discourse ◽  
Human Rights Discourse

This paper reflects on human rights in the post-apartheid South Africa housing context from a social development lens. The Constitution guarantees access to adequate housing as a basic human right, a prerequisite for the optimum development of individuals, families and communities. Without the other related socio-economic rights, the provision of access to housing is limited in its service delivery. We argue that housing rights are inseparable from the broader human rights discourse and social development endeavours underway in the country. While government has made much progress through the Reconstruction and Development Programme, the reality of informal settlements and backyard shacks continues to undermine the human rights prospects of the urban poor. Forced evictions undermine some poor citizens’ human rights leading courts to play an active role in enforcing housing and human rights through establishing a jurisprudence that invariably advances a social development agenda. The authors argue that the post-1994 government needs to galvanise the citizenship of the urban poor through development-oriented housing delivery.

The Internationalization Of Human Rights And The Importance Of Normative Dialogues Between International And National Courts

2017 ◽  
Vol 17 (2) ◽  
pp. 137
Author(s):  
Mariane Morato Stival ◽  
Marcos André Ribeiro ◽  
Daniel Gonçalves Mendes da Costa
Keyword(s):  
Human Rights ◽  
The Other ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court ◽  
Differences Of Opinion ◽  
Rights Discourse ◽  
Different Characteristics ◽  
Human Rights Discourse

This article intends to analyze in the context of the complexity of the process of internationalization of human rights, the definitions and tensions between cultural universalism and relativism, the essence of human rights discourse, its basic norms and an analysis of the normative dialogues in case decisions involving violations of human rights in international tribunals such as the European Court of Human Rights, the Inter-American Court of Human Rights and national courts. The well-established dialogue between courts can bring convergences closer together and remove differences of opinion on human rights protection. A new dynamic can occur through a complementarity of one court with respect to the other, even with the different characteristics between the legal orders.

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