Effects of Combined Hedging

This chapter provides a broad systemic overview of the regimes that regulate intellectual property and hedge exclusivity at the international level, focusing on the interplay of some of the core constitutional hedges in the international IP, investment law, and human rights fields. Such hedges include concepts of private rights (as well as negative rights), concepts of minimum standards, non-discrimination protections, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as a comprehensive supra-national code, and IP protection via broad investment concepts. The chapter then discusses some potential effects of accumulation—that is, the impact of situations in which several constitutional hedges overlap and operate together on a state's ability to regulate IP rights. For the protection conferred by international IP treaties—such as the Paris Convention and the Berne Convention, as well as TRIPS and free trade agreements (FTAs)—this follows from the minimum standards principle, where a later treaty does not override or extinguish existing protections but simply adds to them. This accumulation effect means that states have to consider all forms of protection when deciding on a measure that potentially interferes with IP rights.

Constitutionalizing Reproductive Rights (and Justice)

In Griswold v. Connecticut and Roe v. Wade, the U.S. Supreme Court framed constitutional protections for reproductive rights around the right to privacy. But the Court’s emphasis on privacy was not inevitable. Rather, in the 1960s and 1970s, advocates challenging laws prohibiting contraception and abortion offered a wide range of constitutional grounds in which to root reproductive freedom, including claims of race, class, and sex inequality. Nevertheless, mainstream reproductive rights groups reiterated Griswold and Roe’s privacy logic in their advocacy efforts, further entrenching the rhetoric of privacy, individual choice, and negative rights. However, advocates on the ground sought to recuperate the concerns of race, sex, and class inequality that had previously marked reproductive rights advocacy, and by the 1990s, the reproductive justice movement had emerged as a counterpoint to the traditional reproductive rights framework. Over time, the intersectional elements of the reproductive justice movement have infiltrated mainstream reproductive rights advocacy, widening the range and scope of reproductive rights discourse. But critically, as aspects of reproductive justice have been integrated into mainstream reproductive rights discourse, those opposed to reproductive rights—from antiabortion groups to members of the Supreme Court—have sought to coopt the reproductive justice movement’s rhetoric for their own purposes. Rather than viewing access to abortion and contraception as essential to women’s equality, this new conservative discourse argues that reproductive rights are rooted in, and function as, tools of, race, sex, class, and disability-based inequality and injustice.

Democracy and Hierarchy

The chapter sets forth a political theory of what would make legal challenges to pornography successful. Obstacles are identified in early liberal concepts of “negative rights,” which prevent interventions against non-state abuses of power. A nuanced view of power recognizes “positive rights” to intervention. The feminist theory of consciousness-raising is explored, shedding light on the necessity of subordinated groups’ representation. Intersectionality theory illustrates how multiple disadvantages prevent redress for people harmed by pornography under existing laws. Hence, legal challenges are hypothesized to be more efficient when the perspectives and interests of survivor groups of pornography-related harms are represented. The postmodern position submitting that subordinated groups’ rights should not be recognized, claiming they will be misappropriated and “renaturalize” oppression, is criticized for being a reductionist anti-state position conflating social categorization with its material consequences, thus denying (like negative rights do) a politics that could challenge that same oppressive material reality.

Religious freedom and the right against religious discrimination: Democracy as the missing link

The article puts forward a novel democratic framework to rethink the relationships between religious freedom and religious discrimination. First, it makes a case for a unifying normative basis for all religious interests grounded in a democratic framework, which emphasises the dual dimension of religious interests, both as negative rights protecting individual autonomy against interferences as well as positive rights of participation. Second, it builds upon this democratic framework to revisit the relationships between discrimination law and religious freedom and guard against trends to subject discrimination law claims to preliminary (higher) thresholds. Third, the article examines how contextual balancing exercises between competing interests should (and to a large extent have) become a key unifying feature of both routes and draws from the democratic framework insights as to how these balancing exercises should be carried out.

Justice for All in the Americas? A Quantitative Analysis of Admissibility Decisions in the Inter-American Human Rights System

The overwhelming majority of unsuccessful petitions in the Organization of American States’ Inter-American human rights system are unsuccessful because they are dismissed at the pre-admissibility or admissibility phase rather than at the merits phase. Although this preliminary screening of applications constitutes the major obstacle to petitioners seeking justice, there has been relatively little scholarly analysis of the potential interplay of legal and attitudinal factors at this phase. That is, whether this phase may be where the biases that the system has been accused of (i.e., bias against leftist regimes and a “hierarchization” of negative rights and liberties over social justice) manifest themselves. This article fills this gap in the literature by undertaking a comprehensive quantitative analysis of Inter-American Commission on Human Rights admissibility decisions that measures the impact of a broad range of factors and compares the dynamics of admissibility decisions with those of merits decisions. In so doing, it places into context backlash against the system that has led to recent changes in the system’s procedures.

Bills, Rights and Housing Policy: The Evolution of Israel’s Seven-Decade Housing-Related Bills

How do bills contribute to the promotion of housing rights? Is there a relation between the content of proposed bills and a country’s dominant political economy? Are changes in the political-economic regime reflected in housing-related bills? What type of bill is most likely to be enacted: a provision or a protection? These are the challenge of this study. The analysis is based on the theoretical classic distinction between “provisions” (positive rights) and “protections” (negative rights) from the realm of human rights, producing an empirical cumulative-aggregative analysis, which examines the scope and content of housing-related bills in the Israeli parliament since its establishment in 1948, until today. The research findings are counterintuitive, challenging the understanding that welfare regimes encourage extensive provisions, as opposed to neoliberal regimes that promote extensive protections. Given the current global housing affordability crisis, the research findings are relevant to many countries, parliaments, and organizations that are currently seeking to promote various housing rights.

A Homeless Bill of Rights as a New Instrument to Protect the Rights of Homeless Persons

Homelessness as a violation of human rights – Criminalisation of homelessness – Insufficient international and European protection of the rights of homeless persons – American charters of the rights of homeless persons as a source of inspiration – Model European Homeless Bill of Rights – FEANTSA – Human rights instrument – Positive and negative rights of the homeless person – Right to exit homelessness – Right to carry out practices necessary to survival within the law – Adoption and implementation of the Charter by Human Rights Cities in Spain, Slovenia and Poland – Soft law – Perspectives for the protection of the rights of homeless persons

Correlative Duties

This chapter examines some of the reasons why it sometimes appears that although people have basic security rights, the right, if any, to even the physical necessities of existence like minimal health care, food, clothing, shelter, unpolluted water, and unpolluted air is somehow less urgent or less basic. Frequently it is asserted or assumed that a highly significant difference between rights to physical security and rights to subsistence is that they are respectively “negative” rights and “positive” rights. The chapter offers some examples that clearly illustrate that the honoring of subsistence rights sometimes involves action no more positive than the honoring of security rights does. It also presents two theses about economic deprivation. The chapter then suggests that with every basic right, there are three types of correlative duties: duties to avoid depriving; duties to protect from deprivation; and duties to aid the deprived.

Civil Rights Policy

This article discusses the evolution of U.S. civil rights and civil liberties through the lens of Supreme Court decisions. It traces the evolution of negative rights against the state and positive liberties from nineteenth-century property rights decisions through early-twenty-first century decisions regarding same-sex marriage. It also traces the shift in the Court’s approach to rights cases from one in which the state is regarded as a threat to individual rights to one in which the state plays a complex role of balancing rights claims. As well, the article demonstrates that rights claims and cases have become more complex as notions of the “public interest” become more contested when the pursuit of general interests has a disproportionate effect on the interests of particular social groups.

Republican Elements in the Liberalism of Fear

Judith Shklar’s liberalism of fear is distinct from other liberalisms; it gains its unique imprint and quality through a long and consistent engagement with, and critical discussion of, republicanism. Her account of the contemporary relevance of notions of virtues and vices, justice and injustice, the questions of rights, representation, citizenship and democracy all point to older republican influences. However, Shklar also knew that unreconstructed republicanism and republican ideas of the virtuous life were no longer applicable to modern societal and political conditions. This becomes especially clear in her discussion of Rousseau and in her study Ordinary Vices. The irreducibly pluralist and individualist nature of modern democracy have made it inconceivable that we would all agree on what the virtuous life consists in. Shklar’s emphasis on positive liberty, critically directed against Isaiah Berlin’s argument that negative rights and negative liberty are at the heart of modern liberalism; her insistence on the need for a common spirit as distilled in her study of Montesquieu; the need for equality in terms of voting and earning as stressed in American Citizenship; and finally her discussion of the changing nature of both loyalty and political obligation in her last Harvard lectures, are all indicative of the republican elements that can be detected in her barebones liberalism.