‘The Soul is the Prison of the Body’

2018 ◽  
Author(s):  
Jan Christoph Bublitz
Keyword(s):  
Human Rights ◽  
The Body ◽  
Self Determination ◽  
Psychological States ◽  
Criminal Justice Systems ◽  
Hard Treatment ◽  
Democratic Principles ◽  
The Right ◽  
Pro Social Behavior ◽  
Mandatory Interventions

The promise of neurobiological interventions that afford improving pro-social behavior is particularly interesting for criminal justice systems. After all, rehabilitation of offenders is one of their central objectives. This raises the question of whether states can deploy such means to rehabilitate offenders against the latters’ will, as part of—or instead of—punishment. Some advocates of compulsory treatments of offenders consider them more humane (and effective) than current forms of hard treatment such as incarceration. This chapter critically engages with suggestions to treat legally competent offenders for rehabilitative purposes against their will by emphasizing two aspects. First, strong human rights of offenders—summarily the right to mental self-determination—oppose mandatory interventions into criminogenic psychological states or processes. These human rights are not (yet) recognized in every jurisdiction, but emerge from general liberal and democratic principles that most western jurisdictions endorse. Secondly, the case for mandatory rehabilitation is weaker than it may appear at first glance, because it is anything but clear that and why the penological aim of rehabilitation justifies severe interferences of offenders’ rights. In any case, it seems that states could attain their legitimate forward-looking aims—preventing recidivism—by less restrictive means such as incapacitation. Thus, compulsory rehabilitation may only be justified in exceptional cases. Rather, offenders should be offered a choice between neurorehabilitation and detention.

Self-Determination Through Autonomy or Independence? – On the Current and Future Position of New Caledonia

ICL Journal ◽  
2021 ◽  
Vol 15 (1) ◽  
pp. 67-105
Author(s):  
Markku Suksi
Keyword(s):  
Human Rights ◽  
New Caledonia ◽  
Legal Order ◽  
The Self ◽  
Self Determination ◽  
Normative Framework ◽  
European Court ◽  
Determination Process ◽  
The Right

Abstract New Caledonia is a colonial territory of France. Since the adoption of the Nouméa Accord in 1998, a period of transition towards the exercise of self-determination has been going on. New Caledonia is currently a strong autonomy, well entrenched in the legal order of France from 1999 on. The legislative powers have been distributed between the Congress of New Caledonia and the Parliament of France on the basis of a double enumeration of legislative powers, an arrangement that has given New Caledonia control over many material fields of self-determination. At the same time as this autonomy has been well embedded in the constitutional fabric of France. The Nouméa Accord was constitutionalized in the provisions of the Constitution of France and also in an Institutional Act. This normative framework created a multi-layered electorate that has presented several challenges to the autonomy arrangement and the procedure of self-determination, but the European Court of Human Rights and the UN Human Rights Committee have resolved the issues regarding the right to vote in manners that take into account the local circumstances and the fact that the aim of the legislation is to facilitate the self-determination of the colonized people, the indigenous Kanak people. The self-determination process consists potentially of a series of referendums, the first of which was held in 2018 and the second one in 2020. In both referendums, those entitled to vote returned a No-vote to the question of ‘Do you want New Caledonia to attain full sovereignty and become independent?’ A third referendum is to be expected before October 2022, and if that one also results in a no to independence, a further process of negotiations starts, with the potential of a fourth referendum that will decide the mode of self-determination New Caledonia will opt for, independence or autonomy.

scholarly journals Evolving Legal Protections for Indigenous Peoples in Africa: Some Post-UNDRIP Reflections

2018 ◽  
Vol 26 (3) ◽  
pp. 339-365
Author(s):  
Derek Inman ◽  
Dorothée Cambou ◽  
Stefaan Smis
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Indigenous Peoples ◽  
Regional Level ◽  
Self Determination ◽  
African Continent ◽  
African Context ◽  
United Nations Declaration ◽  
Human Rights Norms ◽  
The Right

Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) many African states held a unified and seemingly hostile position towards the UNDRIP exemplified by the concerns outlined in the African Group's Draft Aide Memoire. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the aforementioned Draft Aide Memoire and highlight how these concerns have been addressed at the regional level, effectively changing how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. The purpose of this article is to do just that: to examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa and how indigenous peoples' right to free, prior and informed consent has been interpreted at the regional level.

scholarly journals Declaration as Disavowal: The Politics of Race and Empire in the Universal Declaration of Human Rights

2018 ◽  
Vol 47 (1) ◽  
pp. 57-81 ◽  
Author(s):  
Emma Stone Mackinnon
Keyword(s):  
Eighteenth Century ◽  
Human Rights ◽  
Racial Politics ◽  
Universal Declaration ◽  
Self Determination ◽  
The World ◽  
Imperial Politics ◽  
Racial Domination ◽  
Politics Of Race ◽  
The Right

This article argues that the Universal Declaration of Human Rights (UDHR), by claiming certain inheritances from eighteenth-century American and French rights declarations, simultaneously disavowed others, reshaping the genre of the rights declaration in ways amenable to forms of imperial and racial domination. I begin by considering the rights declaration as genre, arguing that later participants can both inherit and disavow aspects of what came before. Then, drawing on original archival research, I consider the drafting of the UDHR, using as an entry point the reception of the NAACP’s Appeal to the World petition, edited by W.E.B. DuBois. I reconstruct conversations within the drafting committee about the right to petition, self-determination, and the right to rebellion, and the separation of the Declaration from the rights covenants, to illustrate the allegiances between US racial politics and French imperial politics, and their legacies for our contemporary conceptions of human rights.

Solidarity

2021 ◽  
pp. 327-340
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
The Other ◽  
Self Determination ◽  
Third Generation ◽  
Human Rights Law ◽  
Healthy Environment ◽  
Right To Development ◽  
The Right ◽  
Collective Dimension

Some fundamental rights, variously described as ‘solidarity rights’, ‘people’s rights’ or ‘third generation rights’ are not fully reflected in the human rights instruments. Indeed their place within human rights law remains somewhat controversial although that does not imply that they are not customary in nature. Among them are the right to peace, the right to a healthy environment, the right of peoples to self determination, and the right to development. The main distinction between these rights and other human rights relates to the jurisdiction of human rights bodies. They have a collective dimension that is not present in the same way with the other categories of human rights.

18. The right to self-determination

2019 ◽  
pp. 330-347
Author(s):  
Rhona K. M. Smith
Keyword(s):  
Human Rights ◽  
Self Determination ◽  
Current Debate ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Territorial Integrity ◽  
The Future ◽  
International Human ◽  
The Right

This chapter examines the right to self-determination in international human rights law. It traces the origins of this right and considers issues characterizing the current debate on the future of self-determination. The chapter suggests that while self-determination is acceptable for divesting States of colonial powers, problems can arise when groups that are not the sole occupants of a State territory choose to exercise self-determination. The right to self-determination may sit uneasily with respect for territorial integrity of States. Various forms of modern self-determination, including partial or full autonomy within States are emerging.

17. The right to self-determination

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
Human Rights ◽  
Self Determination ◽  
Current Debate ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Territorial Integrity ◽  
The Future ◽  
International Human ◽  
The Right

This chapter examines the right to self-determination in international human rights law. It traces the origins of this right and considers issues characterizing the current debate on the future of self-determination. The chapter suggests that while self-determination is acceptable for divesting States of colonial powers, problems can arise when groups that are not the sole occupants of a State territory choose to exercise self-determination. The right to self-determination may sit uneasily with respect for territorial integrity of States. Various forms of modern self-determination, including partial or full autonomy within States are emerging.

19. Indigenous Peoples’ Human Rights

2016 ◽  
Author(s):  
Paul Havemann
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Indigenous Peoples ◽  
Self Determination ◽  
State Sovereignty ◽  
Group Rights ◽  
Indigenous Group ◽  
The Right ◽  
The Impact

This chapter examines issues surrounding the human rights of Indigenous peoples. The conceptual framework for this chapter is informed by three broad, interrelated, and interdependent types of human rights: the right to existence, the right to self-determination, and individual human rights. After describing who Indigenous peoples are according to international law, the chapter considers the centuries of ambivalence about the recognition of Indigenous peoples. It then discusses the United Nations's establishment of a regime for Indigenous group rights and presents a case study of the impact of climate change on Indigenous peoples. It concludes with a reflection on the possibility of accommodating Indigenous peoples' self-determination with state sovereignty.

Can Armed Non-state Actors Exercise Jurisdiction and Thus Become Human Rights Duty-bearers?

2020 ◽  
Vol 20 (2) ◽  
pp. 269-305
Author(s):  
Amrei Müller
Keyword(s):  
Human Rights ◽  
International Law ◽  
Recent Literature ◽  
Self Determination ◽  
Future Research ◽  
Human Rights Law ◽  
State Actors ◽  
The Right ◽  
Political Understanding ◽  
Normative Logic

Abstract Recent literature and United Nations documents advocate that most armed non-state actors (ANSAs) should be bound by human rights law. This article takes a more critical stance on this issue. It argues that only a limited number of ANSAs should potentially become human rights duty-bearers: those that exercise de facto (human rights) jurisdiction and thus have considerable institutional and military capacities, as well as particular normative characteristics. It specifies these capacities and characteristics with an analysis of ANSAs’ practice that tentatively indicates that some of these entities may indeed exercise de facto jurisdiction. The argument is justified by highlighting the broader consequences that recognising ANSAs as human rights duty-bearers will entail. It will also endow them with privileges that will legitimise their authority over time. This is grounded in the normative logic of human rights law that emphasises the interrelationship between human rights, equality and democracy that also permeates the notion of jurisdiction and is further supported by a political understanding of the right to self-determination. The article closes with a brief sketch of two complementary ways to develop international law binding ANSAs to be further explored in future research: the so-called ‘responsibilities for human rights’ and an adapted law of occupation.

Tibetans Wait for China's Next Move

Worldview ◽  
1980 ◽  
Vol 23 (1-2) ◽  
pp. 36-39
Author(s):  
Kesang Tseten
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Civil Liberties ◽  
Self Determination ◽  
General Assembly ◽  
The United Nations ◽  
The Right ◽  
American Civil Liberties Union ◽  
The U.S ◽  
International League

AbstractIt has been twenty years since the Tibetan uprising. Last March, Tibetans and their American supporters rallied outside the United Nations building to commemorate that uprising against Chinese troops occupying the Tibetan homeland.Roger Baldwin, founder of the American Civil Liberties Union and honorary president of the International League for Human Rights, was there calling for support of resolutions passed three times by the U.S. General Assembly, in 1959, 1961, and 1965. The U.S. called “for respect for the fundamental human rights of the Tibetan people and for their right to self-determination.” The rally, Baldwin said, was to protest the “subjection of six million people to foreign rule” and to uphold “the right to live in your own house.” The nonagenarian champion of civil liberties expressed some hope: “It may be that autonomy, semi-independence in Tibet, may be granted when China settles down into the modernization it seeks.”

Self-Determination, Human Rights, and the Nation-State

2017 ◽  
Vol 19 (4-5) ◽  
pp. 443-484
Author(s):  
Gaetano Pentassuglia
Keyword(s):  
Human Rights ◽  
International Law ◽  
Minority Groups ◽  
Self Determination ◽  
Nation State ◽  
International Human Rights Law ◽  
General Process ◽  
Cultural Minority ◽  
The Right

Abstract In this article I examine selective dimensions of the nexus among the right to self-determination, human rights, and the ‘nation-state’ as they relate to claims made by certain ethno-cultural minority groups. I first discuss some conceptual extensions of ‘national’ claims and their underlying relation to international law and state sovereignty. Then, I critique elements of ‘national’ self-determination that are supposedly constitutive of the law of self-determination, including arguments about sub-national groups as ‘peoples’, and discuss some alternative approaches to the role of international law vis-à-vis this sort of claims. Finally, I argue that international human rights law can offer a synthesis of the above nexus insofar as it works, not so much as a platform for accepting or rejecting seemingly ‘absolute’ rights or solely enabling legal-institutional ad hocism, but rather as a general process-based framework for assessing group- related pathologies that are (directly or indirectly) of international law’s own making.

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