General comment No. 5 (2021) on Migrants’ Rights to Liberty, Freedom from Arbitrary Detention and their Connection with other Human Rights

Article 16 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families protects the right of migrant workers and members of their families to liberty and security of person. Under Article 17, those deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity. The Committee on Migrant Workers’ General Comment No. 5 (2021) provides authoritative interpretation of articles 16 and 17 and other articles of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in the context of the rising trend towards criminalization of migration and increasingly frequent use of detention of migrants. General Comment No. 5 (2021) intends to provide guidance to States on fulfilling their obligations under the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in relation to the right to liberty and protection against arbitrary detention, and other intersecting human rights obligations and other human rights obligations arising from the intersection of those rights with other human rights. The General Comment is also aimed at providing guidance to States on the implementation of the Global Compact for Safe, Orderly and Regular Migration and to other stakeholders on implementing initiatives to promote and protect human rights and to monitor compliance thereof.

The Universal Declaration of Human Rights: an archival commentary*

On 10 December 1948 the Third General Assembly of the United Nations adopted the Universal Declaration of Human Rights: a universal declaration, not a United Nations declaration. The Preamble of the Declaration begins by proclaiming that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. As archivists know, the nexus between human rights and archives is strong and complex, because records are essential both to protecting these rights and to obtaining recourse when these rights are violated. This essay illuminates some of the relationships of records to rights, looking at each of the 30 Articles in turn.

The Interpretive Framework and the Reform (as opposed to the Abolition) of Mental Health Law

Having rejected the abolition of mental health law in Chapters 4 to 7, Chapter 8 explores the possibility of the reform of mental health law. It explains the Mental Capacity with Support and Support Except Where There is Harm models. It applies the interpretive compass of inherent dignity (including autonomy), equality, and participation to both models and compares them to the Abolition with Support model. It argues in favour of the Mental Capacity with Support model as being compatible with the CRPD (despite the contrary arguments from abolitionists) and more transparent than Abolition with Support. It proposes improvements to the Mental Capacity with Support model. It discusses wider reforms to the mental health system, social reforms, and how reform is possible without abolishing mental health law first.

Application of Inherent Dignity to the Abolition with Support Model

This chapter argues that inherent dignity is more than an abstract concept and must be understood within its social and political context. It applies the concept of inherent dignity in the disability context and to the Abolition with Support model. I argue that dignity is relevant to mental health in two ways. First, it relates to the loss of dignity that persons with mental impairment may experience by reason of their impairment itself and secondly by the way in which persons with mental impairment have historically been treated by the mental health system and society more generally. I consider the meaning of autonomy and the tensions between the concepts of dignity and autonomy. I argue that the meaning of dignity is wider than the legal recognition of autonomy. On a balanced and holistic reading of the CRPD which gives effect to all human rights, dignity may at times be given priority over autonomy, which could provide a human rights justification for limited detention and psychiatric treatment, rather than the abolition of mental health law. Nonetheless, the loss of dignity that is caused by the mental health system must also be addressed and provides a strong basis for significant systemic and legal reform.

Human Rights and Human Dignity: A Case Against Separating the Conjoined Twins

Doris Schroeder asserts that the received view according to which human rights are derived from the inherent dignity of the human person must be rejected. She appeals to separate these conjoined twins (human dignity and human rights) by offering three knockdown arguments respectively captioned as “the justification paradox”, “Kantian cul-de-sac” and “hazard by association”. This paper submits a case for preserving the conjoined twins, both by refuting Schroeder’s arguments and at the same time proposing a positive appraisal of human dignity as foundational to human rights. The distributive account of a foundation, on which Schroeder’s arguments are premised, requires that a normative foundation must underpin every single human rights claim. Human rights claims, as diverse as they are, admit plurality of normative foundations (understood in the distributive sense) and human dignity directly underpins only a subset of the most basic human rights. There is another sense in which human dignity can be conceived as foundational to human rights, precisely as the general moral standing of human beings as holders of the bundle of moral human rights. Foundation as moral standing is consistent with the view that not every human rights-claim has its normative foundation in human dignity; thus, Schroeder is mistaken in thinking that failing to be a foundation in the distributive sense defeats the accepted view that human rights derive from human dignity.

Reinstating the Inherent Dignity of Marginalized Communities in Ghana

When a representative democracy implicitly or explicitly undermines minority rights and prevents marginalized people from actively participating in a democratic process, it facilitates social exclusion. This paper focuses on how Ghana’s democracy, coupled with traditions, aggravate social exclusion. The research discusses the democratization process of Ghana and its role in the marginalization of minorities. Particularly, this paper looks at the class-based marginalization of women on the one hand and the sex-based marginalization of the LGBTQI+ community on the other, in Ghana. Finally, this paper explores how Soka Education, as a way of life, can support these marginalized communities in Ghana.

Exhuming Dead Persons: Forensic Science and the Making of Post-fascist Publics in Spain

Four decades after the fall of its dictator, Spain still refuses to undertake its legal and moral responsibilities to locate the disappeared. This essay examines how Spanish activists use forensic exhumations to transform the political status of Franco’s victims. Departing from popular and scholarly depictions of forensic science, I show that, in post-fascist Spain, the impact of exhumations has little to do with their ability to extract historical information directly from the bones of the exhumed. Instead, I argue that exhumations transform the disappeared into dead persons, thereby reincorporating them as integral participants in a democratic public sphere. For memory activists, the project of securing Spain’s democratic future depends on recognizing the personhood of long-excluded victims of fascist violence. Absent any official legal framework, I show how Spanish activists train laypersons to recognize the inherent dignity of the dead and see them as potential participants in an alternative democratic public. Resumen Cuatro décadas después de la caída del dictador Francisco Franco, España aún rechaza su responsabilidad legal y moral de localizar a los desaparecidos. Este ensayo examina cómo los activistas españoles transforman el estatus político de las víctimas del franquismo a través de las exhumaciones forenses. Partiendo de representaciones académicas y populares de la ciencia forense, demuestro que el impacto de las exhumaciones en la España posfascista tiene poco que ver con la capacidad de extraer los hechos históricos directamente de los huesos exhumados. En lugar de ello, sostengo que los desaparecidos se transforman en personas muertas a través de las exhumaciones y, de esa manera, son reincorporados como participantes integrales en la esfera pública democrática. Para los activistas por la memoria, el proyecto de asegurar el futuro democrático de España depende de que las víctimas de la violencia fascista, excluídas por largo tiempo, sean por fin reconocidas como personas. A falta de marco jurídico, demuestro cómo los activistas españoles entrenan a las personas no expertas a reconocer la dignidad de los muertos y considerarlos como participantes potenciales en una esfera pública democrática y alternativa.