Self-determination and “the Right to Specificity”. Concerning Hegel’s Theory of Modern Freedom

In this paper, it will be shown that Hegel’s philosophical thematisation of subjective freedom has given a fundamental contribution to the historical innovation of modernity, which regards not only human rights, but also norms and values. Besides, it played an important role concerning the cultural transformation, i.e., the process of the realization of the historical innovation oriented towards the ideals of modern freedom. To show this, the author will focus on some passages from Hegel’s Philosophy of Right of 1820, in which Hegel regarded subjective freedom as universally-normative and, at the same time, as socially and historically contextualized (situated, respectively). Hegel, namely, explicates modern freedom in its ideality and moral normativity, addressing its realization in particular forms of life. Marriage, for instance, as it will be shown towards the end of this contribution, exemplified as the right to particularity, is the normative basis of modern subjective freedom. Tensions and collisions will permanently challenge this type of freedom and also require permanent (and self-defeating) efforts invested in striving for a (too contextualized and situated) „reconciliation“ (in Hegel´s terms Versöhnung).

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

ICL Journal ◽

10.1515/icl-2020-0030 ◽

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.

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

African Journal of International and Comparative Law ◽

10.3366/ajicl.2018.0236 ◽

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.

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

Political Theory ◽

10.1177/0090591718780697 ◽

2018 ◽

Vol 47 (1) ◽

pp. 57-81 ◽

Cited By ~ 1

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.

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Ratifikasi Konvensyen Pertubuhan Bangsa-Bangsa Bersatu terhadap Hak Orang Kurang Upaya: Implikasi dan Realiti dari Dimensi Perundangan dan Kesamarataan

Kanun: Jurnal Undang-undang Malaysia ◽

10.37052/kanun.32(2)no6 ◽

2020 ◽

Vol 32 (2) ◽

pp. 297-319

Author(s):

Norita Azmi ◽

◽

Salawati Mat Basir

Keyword(s):

Human Rights ◽

Minority Group ◽

Disabled Persons ◽

Persons With Disabilities ◽

Legal Provisions ◽

Federal Constitution ◽

Norms And Values ◽

The Disabled ◽

The Government ◽

The Right

Issues related to the disabled right in the country continue to attract criticism and debate, as implementation is very slow and weak. The disabled have the right to live like other normal people, which includes protection in times of danger and emergency. One of the important mechanism for the care of the disabled is through legal means. The government has signed the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as part of its efforts to empower and protect this minority group. As such, the government has taken the initiative to enact the Persons with Disabilities Act 2008 and ratified the Convention on the Rights of Persons with Disabilities (CRPD) in 2010 as one of the government’s commitments in complying with international human rights conventions as long these do not against the Federal Constitution. This article aims to uncover and analyse the legal provisions in Malaysia relating to the disabled and their right to live, as stated in the Federal Constitution and relevant legal provisions. In essence, this shows that Malaysia, as a member of the UN, is bound to adopt international laws and treaties on human rights if these do not violate local norms and values. At the end of the discussion, some ideas are presented as solutions for the government to improve the issue of disabled persons so that in the eyes of the world, Malaysia will be recognized as one of the countries that cares for and defends its disabled, in line with the Convention on the Rights of Persons with Disabilities 2008.

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Proportionality and Justification

Constitutionalism Justified ◽

10.1093/oso/9780190889050.003.0008 ◽

2019 ◽

pp. 159-196

Author(s):

Matthias Klatt

Keyword(s):

Human Rights ◽

Cultural Relativity ◽

Rational Application ◽

Global Constitutionalism ◽

Normative Basis ◽

Space Of Reasons ◽

Proportionality Test ◽

The Right

This chapter presents a normative defense of proportionality’s absolute validity, arguing that proportionality is one of the central rules that establish the space of reasons. Proportionality enables the construction of a justified and well-founded basis for the rational application of human rights. The normative basis of proportionality lies in a moral right to justification. To explore this idea, the chapter begins by explaining the meaning of a right to justification. Next, it explores how it relates to the proportionality test. Building upon the distinction between internal and external justification of rights reasoning, it also addresses the universality problem that consists in doubts about the global validity of the right to justification. It defends the international and transnational validity of the right to justification against claims to cultural relativity by discussing the application of human rights. This, in turn, allows a defense of Forst’s right to justification as a robust fundament of discursive global constitutionalism.

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Solidarity

10.1093/oso/9780192845696.003.0011 ◽

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.

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18. The right to self-determination

International Human Rights Law ◽

10.1093/he/9780198843672.003.0018 ◽

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.

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17. The right to self-determination

International Human Rights Law ◽

10.1093/he/9780198805212.003.0017 ◽

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

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19. Indigenous Peoples’ Human Rights

Human Rights: Politics and Practice ◽

10.1093/hepl/9780198708766.003.0020 ◽

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.

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

Human Rights Law Review ◽

10.1093/hrlr/ngaa012 ◽

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.

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