Paradigms of International Human Rights Law

by Aaron Xavier Fellmeth

Overview

Paradigms of International Human Rights Law explores the legal, ethical, and other policy consequences of three core structural features of international human rights law: the focus on individual rights instead of duties; the division of rights into substantive and nondiscrimination categories; and the use of positive and negative right paradigms. Part I explains the types of individual, corporate, and state duties available, and analyzes the advantages and disadvantages of incorporating each type of duty into the world public order, with special attention to supplementing individual rights with explicit individual and state duties. Part II evaluates how substantive rights and nondiscrimination rights are used to protect similar values through different channels; summarizes the nondiscrimination right in international practice; proposes refinements; and explains how the paradigms synergize. Part III discusses negative and positive paradigms by dispelling a common misconception about positive rights, and then justifies and defines the concept of negative rights, justifies positive rights, and concludes with a discussion of the ethical consequences of structuring the human rights system on a purely negative paradigm. For each set of alternatives, the author analyzes how human rights law incorporates the paradigms, the technical legal implications of the various alternatives, and the ethical and other policy consequences of using each alternative while dispelling common misconceptions about the paradigms and considering the arguments justifying or opposing one or the other.

Product Details

ISBN-13:	9780190611293
Publisher:	Oxford University Press
Publication date:	06/30/2016
Sold by:	Barnes & Noble
Format:	eBook
Pages:	304
File size:	650 KB

About the Author

Aaron Xavier Fellmeth is Professor of Law and the Willard H. Pedrick Distinguished Research Scholar at Sandra Day O'Connor College of Law, Arizona State University. He specializes in public international law, international human rights law, international legal theory, and international business transactions. He serves on the Board of Directors of the International Law Association (American Branch), where he is also Director of Studies and Chair of the International Human Rights Committee. He has published widely inter alia in public international law, international legal theory, and international human rights law. He authored a coursebook entitled Law of International Business Transactions (now in its second edition, 2011). He co-authored (with Maurice Horwitz) the Guide to Latin in International Law (Oxford, 2009).

Table of Contents

ACKNOWLEDGMENTS TABLE OF ABBREVIATIONS&CITATIONS INTRODUCTION PART I - HUMAN RIGHTS AND FUNDAMENTAL DUTIES Chapter 1 - The Concept of Fundamental Duties A. The Universal Duties Movement 1. Individual Duties 2. Corporate Duties B. Five Classes of Beneficiaries of Moral Duties: A Typology 1. Duties Toward Other Individuals 2. Duties Toward Discrete Groups 3. Duties Toward Humankind as a Whole 4. Duties Toward Oneself 5. Ecological Duties C. Conclusion Chapter 2 - Duties and Rights as Alternative Value Paradigms A. Universal Human Duties as a Legal Concept 1. Why Individual Duties? 2. Objections to Individual Duties under IHRL 3. Summary B. Corporate Human Rights Duties as a Legal Concept C. State Fundamental Duties as an Alternative to Individual Human Rights 1. Tonal Connotations of Rights and Duties Paradigms 2. Identification of the Relevant Duty Holder and Extent of Its Duties 3. Ascertainment of Interests of the Right Holder and Right Claiming PART II -NONDISCRIMINATION AND SUBSTANTIVE RIGHT CLAIMING PARADIGMS Chapter 3 - Nondiscrimination as a Claiming Paradigm A. Two Methods of Value Protection B. The International Legal Definition of Discrimination 1. Similar Situations 2. Legitimate Aim 3. Proportionality C. Contextual Factors in Discrimination Analysis 1. Prohibited Grounds 2. The Protected Interest 3. The Individual and Social Consequences of Discrimination 4. Source of the Threat 5. Intention to Discriminate D. Rationalizing Nondiscrimination Doctrine 1. Prohibited Grounds 2. Interests Protected 3. Public and Private Discriminators 4. Intention to Discriminate Chapter 4 - Interchangeability and Complementarity of Substantive and Nondiscrimination Paradigms A. The Extent and Limits of Equivalence 1. General Substitutability 2. Limits on Substitutability 3. The Ius Cogens Question 4. Group Rights and Discrimination B. Legal Implications and Systemic Consequences of the Choice of Paradigms 1. The Substantive Rights Claiming Paradigm 2. The Discrimination Claiming Paradigm C. Complementarity of Nondiscrimination and Substantive Rights Claims PART III - NEGATIVE AND POSITIVE HUMAN RIGHTS Chapter 5 - Are Negative and Positive Distinct and Meaningful Categories? A. The Conventional Distinction Between Negative and Positive Rights 1. Common Definitions 2. The Basis for the Negative and Positive Distinction B. What Makes a Right Negative? C. Can There Even Be Negative Rights? D. The Concept of "Basic" Positive Rights Chapter 6 - The Legal Consequences of Negative and Positive Paradigms A. The Scope of Negative and Positive Rights 1. Negative and Positive as Non-Opposites 2. Nonuniformity in the Strength and Scope of Rights within Categories 3. Pseudo-Positive Rights B. Complementary Framing C. Ambiguously Framed Rights Chapter 7 - Structural Implications of Negative and Positive Paradigms A. Positive Rights and Economic Development B. Is There a Negative Duty to Renounce Benefits from Injustice? C. Are Positive Rights Generally Desirable? 1. Ethics and Positive Rights 2. Positive Rights as a Practical Concept Epilogue Index

Editorial Reviews

"By offering interesting and innovative insights into how to rethink the three proposed paradigms of IHRL, this book represents a valuable tool to begin the ambitious project of deconstructing HR law and theory and to foster further research and debate on how HR law both functions and should function in the world public order."— Silvia Venier, Human Rights Law Review

"International human rights law remains woefully under-theorized as a discipline that is neither reducible to ethical theorizing on human rights or doctrinal work on a branch of international law. Paradigms of International Human Rights Law sinks its teeth into some of the questions barely below the surface, and it does so with intellectual gusto, flair and ambition, while in the process uncovering many of the founding dilemmas the discipline did not know it had." -Frédéric Mégret, Associate Professor, Canada Research Chair in the Law of Human Rights & Legal Pluralism, and William Dawson Scholar at the McGill University Faculty of Law

"Through a compelling and rigorous analysis of human rights instruments, jurisprudence and scholarship, Fellmeth systematically deconstructs some of the core concepts of the field (rights, duties, non-discrimination, positive versus negative rights and duties). In so doing, he unmasks the diversity, structural complexity and moral underpinnings of human rights law, while identifying important areas where we might expect decision-makers in this twenty-first century to do much, much more." -Sean D. Murphy, Patricia Roberts Harris Research Professor of Law, George Washington University, and Member, United Nations International Law Commission

From the Publisher