Women’s Rights are Human Rights

This comment on the contribution by Hilary Charlesworth and Christine Chinkin focuses on three apparent antinomies of women’s rights: margin–mainstream, specialist–generalist, and family–individual. Adding a Chinese perspective to these discussions, the comment highlights the importance of choice of terminology in a particular cultural setting. It also questions the positioning of actors in terms of centre–periphery and shows how various actors can work across limits and perceived locations. Going beyond the discussions in UN bodies, the comment emphasizes the local social contexts and persisting stereotypes that need to be at the centre of social change. This requires a translation of international normative endeavours into local public and private spheres of civil society, economy, and government.

The Limits of Human Rights in Times of Armed Conflict and Other Situations of Armed Violence

Human rights are said to be ill-adapted to times of armed conflict or for dealing with exceptional terrorist threats. Are human rights limited by the applicability of other branches of international law including the laws of war? Are there limits to the work human rights can usefully do in situations of threatened violence when their strict application is said to put lives at risk? This chapter tackles some of the contemporary arguments surrounding the limitations of human rights law in the face of the competing demands of winning the war and killing terrorists. It focuses on killings and detention inside and outside armed conflict. It also asks whether there are limits to the obligations we can impose on armed groups.

The Banality of Humanity (as an Absolute)

This chapter is a comment on a reflection by Frédéric Mégret on the limits of the laws of war. It proposes a jurisprudence of limits that focuses less on absolute ideals but on the compromising and enabling space ‘in-between’ these absolutes. Relying on Hannah Arendt’s views on different conceptions of humanity, the comment critically engages with a thinking in terms of inherent opposing interests and oscillations between them. A conception of limits as reproducing inherent absolutes is disabling and passive. Instead, limits can be understood as facilitating a space that enables us to judge and to act, also through compromise. International humanitarian law and international human rights law, perhaps more than other areas of international law, depend on preserving and actively seeking this politically relevant space.

The Limits of Human Rights in a Moving World—Elements of a Dynamic Approach

This contribution discusses the limits to the ideal of human rights in the context of a triple dynamic: the reason of State and its limits; the ecological reason and its call to protect the planet and the ecosystem; and the techno-scientific reason as a supreme reason which ultimately could lead to the refusal of any limit. It suggests that if we consider human rights as a dynamic and transformative process and not as a static concept, these rights remain the counterpoint to the derailments of globalization. They seem more than ever necessary for the emergence of a truly common law. If the interplays of limits are well defined, human rights would make this truly common law more flexible by giving it a variable content within limits which allows it to adapt better to the diversity of the real world.

Between the Margins and the Mainstream

This chapter investigates the conceptual limits of the field of women’s rights. It identifies two main currents of activity in the field: the elaboration of human rights standards, particularly through the UN Convention on the Elimination of All Forms of Discrimination against Women of 1979; and the development of the ‘Women, Peace and Security’ agenda by the UN Security Council since 2000. Both areas are limited in their understandings of the diverse lives of women. The chapter argues that campaigns for the recognition of women’s rights shuttle between the mainstream and the margins of international law and that the structural bases of women’s disadvantage remain obscured in both locations.

Advocating for Social and Economic Rights—Critical Perspectives

This comment situates Aryeh Neier’s critique of social and economic rights within a broader set of arguments about the nature of such rights as rights, about their justiciability and enforceability, and about their value to social justice advocates and social movements’ political strategies. It highlights the main responses to Neier’s critique articulated by human rights scholars and activists, including those pointing to the indivisibility and interdependence of the human rights framework. The comment draws however on historical and theoretical perspectives on the fundamental structure of this framework to both revisit and transcend Neier’s critique. It points to approaches that aim at taking critique seriously when engaging in social justice-oriented human rights work.

Prologue

What kinds of limits on observance or enforcement of international human rights inform this field? What, why, and how do they limit? This chapter explores the variety of these limits through three illustrations. (1) The very treaty definition of the right may set forth justifications for limiting its application. (2) A comparison of international human rights with more traditional treaty subjects like trade or commerce suggests the distinctive problems in trying to ensure that treaty parties observe their commitments to respect rights. Such difficulties limit and lengthen the processes of enforcement of rights. (3) Economic and social rights draw growing attention in a number of states, either by their incarnation in a leading Covenant or by their influence in state constitutions. Current debates inquire as to whether courts can play a larger role in their enforcement, or whether traditional notions of democracy may block certain types of recourse to the judiciary and thus limit paths towards enforcement.

Where are the Limits of Human Rights? Four Schools, Four Complementary Visions

This comment makes sense of Delmas-Marty’s contribution by elaborating further the author’s four-school human rights model. It is surmised that as a predominantly natural scholar, Delmas-Marty is inclined to approach the limits of human rights as unfortunate ‘mishaps’—and to hold a universal view of the history of human rights. By contrast, Dembour’s arguable strong affiliation to the discourse school leads her to highlight human rights’ inherent defects—and historical failures. A deliberative scholar would tend to envisage the proper domain of human rights as restricted to political governance—and to produce human rights’ histories with a strong institutional focus. Finally, a protest scholar would expect human rights to be hijacked by the elite and to fail to produce the emancipatory results they promise—thus producing a history where the limited results which are achieved need to be constantly renewed.

The End of the War/Peace Limit on the Application of International Human Rights Law

In ‘The Limits of Human Rights in Times of Armed Conflict and Other Situations of Armed Violence’, Andrew Clapham explains how the dynamics of international human rights law (IHRL) in recent decades, which give effect to foundational principles such as universality and the non-derogability of core humanitarian norms, have extended the limits of IHRL. This comment discusses three sets of concerns, which are also touched upon by Clapham, explicitly or implicitly: the disruptive effect of IHRL on substantive regulations of conflict situations, the functional limits of IHRL monitoring bodies, and the political backlash encountered due to normative and institutional expansion. The comment also offers a number of critical observations on how IHRL has developed so far in relation to armed conflict situations and how should IHRL monitoring bodies apply IHRL in such situations.

Women’s Progress and Women’s Human Rights

Focusing primarily on CEDAW, this chapter examines the role that international human rights law plays in the advancement of the protection of human rights of women. The author claims that although human rights law lags well behind the women’s movement in some crucial ways, nonetheless, it is worthwhile that documents like CEDAW exist, and not merely for their direct legal value (which can be questioned). Documents help people to network across national boundaries and to develop a sense of common purpose, a common language, a common set of demands, and a sense that progress is being made. In a few cases, moreover, CEDAW has had a real, if limited, legal significance, when implemented by friendly jurists. The author suggests that the influence of international human rights law ought to be assessed, often at least, in this broader way, looking at the role of documents in political and social movements.