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This title explores the foundational theoretical aspects of international human rights law, delving into the philosophical underpinnings and conceptual frameworks that shape our understanding of human rights. It examines the historical evolution of human rights ideas, the influence of various philosophical traditions, and the ongoing debates about the nature and universality of human rights. This section also addresses the epistemological ruptures between philosophy and law, and between law and justice, highlighting the challenges in reconciling these perspectives within a coherent human rights framework. It discusses the contributions of different schools of thought, such as natural law, positivism, and sociological approaches, to the development of human rights theory. By critically analyzing these theoretical foundations, this title aims to provide a deeper understanding of the principles and values that underpin international human rights law and to highlight the complexities and nuances involved in defining and protecting human rights in diverse cultural and legal contexts.
A pragmatic approach to international human rights law involves discussing its premises, principles like human dignity, liberty, equality, and solidarity, and structural principles such as democracy, pluralism, and the rule of law. The chapter also examines the conditions, matters, and actors involved in the discussion. It explores how these principles are applied in practice and the challenges faced in their implementation. The chapter emphasizes the importance of a pragmatic approach that considers the practical realities of applying human rights principles in different contexts. It also discusses the role of various actors, including states, international organizations, and civil society, in promoting and protecting human rights.
Artificial Intelligence (AI) has enriched the lives of people around the globe. However, the emergence of AI-powered lethal autonomous weapon systems (LAWS) has become a significant concern for the international community. LAWS are computer-based weapon systems capable of completing their missions, including identifying and engaging targets without direct human intervention. The use of such weapons poses significant challenges to compliance with international humanitarian and human rights law. Scholars have extensively examined LAWS in the context of humanitarian law; however, their implications for human rights warrant further discussion. Against this backdrop, this paper analyzes the human rights challenges posed by LAWS under international law. It argues that using LAWS in warfare and domestic law enforcement operations could violate human rights, such as the rights to life, human dignity, and remedy, among others. Thus, it calls for a prohibition of the use of killer robots against humans.
While sexual violence is receiving increasing attention in terms of international humanitarian and criminal law, and on the world political scene, this does not apply to all aspects of such crimes. Sexual acts on dead bodies are a common practice in times of armed conflict, constituting an affront to universal moral values that exacerbates the violence, domination and humiliation which motivates such abuses. However, such crimes have rarely been prosecuted under international criminal law, and where they have, perpetrators have been charged with umbrella offences or in connection with the protection of human dignity rather than with sexual offences. To explain this tendency, the present article takes stock of the legal treatment of sexual violence on dead bodies, examining the legal, philosophical and moral concepts that apply, with a view to obtaining recognition of such acts as sexual offences.
The widespread use of artificial intelligence technologies in border management throughout the European Union has significant human rights implications that extend beyond the commonly examined issues of privacy, non-discrimination and data protection. This article explores these overlooked impacts through three critical frameworks: the erosion of freedom of thought, the disempowerment of individuals and the politicization of human dignity. In uncovering these dynamics, the article argues for a broader conception of human rights to prevent their gradual erosion and safeguard the core principle of protecting human dignity.
The right to freedom of thought is not explicitly mentioned in the German Basic Law. This chapter examines whether and how freedom of thought might be implicitly protected in the Basic Law (GG), focusing on the right to freedom of belief, conscience and religion (Article 4 GG), the right to freedom of expression and information (Article 5 GG), the right to human dignity (Article 1(1) GG) and the general right of personality (Article 2(1) in conjunction with Article 1(1) GG). Freedom of thought is sometimes mentioned in the literature in connection with freedom of belief, conscience and religion and freedom of expression and information as a necessary precondition for the formation of convictions and opinions. Inner freedom is an inherent aspect of human dignity, but only extreme forms of interference with the inner freedom of the person constitute a violation of this right. The general right of personality protects the prerequisites of personal freedom and self-determination and therefore could provide the most comprehensive protection for a person’s inner freedom. It is therefore argued that while freedom of thought is within the scope of protection of these four rights, it can be rooted in the general right of personality in particular.
This chapter contains answers to the Questionnaire on Constitutional Democracy for Chinese Liberal Intellectuals, which covers the basic concepts and institutional designs of constitutional democracy. China’s most pressing task is not making a new and better constitution, but rather formulating social contract through implementing the existing constitution, which does pay lip service to many political natural law precepts. Unlike many admirers of the American presidential system, I advocate for a Westminster-type parliamentary system, which has largely been borrowed by the current Chinese constitution, to be embedded in a federal framework for future China.
This book offers the reformist perspective of one of the most persistent and outspoken constitutional reformers in China. Through the analysis of landmark constitutional events in China since the late nineteenth century, it reveals the fatal dilemma faced by constitutional reform and the deadly dangers of any violent revolution that arises out of the frustration with the repeated failures of reform. Although there is no easy way out of such a predicament, the book analyzes available resources in the existing system and suggests possible strategies that might bring success to future constitutional reforms.
In this paper, I question the argument from human dignity found in the Universal Declaration on the Human Genome and Human Rights (UDHGHR) and in the recent views of the International Bioethics Committee (IBC). I focus on what this argument says about the permissibility of two broad categories of reprogenetic choices that may be available to prospective parents in the genomic era. The argument from human dignity holds that non-medical genetic selection and somatic enhancements ought to be prohibited because they violate the principle of human dignity. I argue that human dignity need not be violated by the enterprise of human genetic selection/somatic enhancement if reasonable social safeguards are established. In particular, I argue that respecting the reprogenetic choices of the decision-maker is paramount within the boundaries of (i) prohibiting the infliction of a shortened lifespan or pain upon the child; (ii) prohibiting the actualization of demeaning beliefs or intentions such as viewing certain groups as inferior; (iii) prohibiting the choice resulting from an expression of unwillingness to love and care for the child; and, with respect to somatic gene enhancements in particular, (iv) the potentially unjustified effects of the enhancement on others, if any, are reasonably addressable (and addressed) via social modifications so as to ensure the enhancement no longer risks adversely affecting them. With these limits, reprogenetic autonomy cannot be said to undermine the dignity of humans by creating unjustified harms or expressing demeaning ideas.
Chapter 8 presents German constitutionalism as an example of the rising relevance of the Common Law tradition in the German legal culture. The historical development of constitutionalism is discussed, focusing on the postwar Grundgesetz (Basic Law), which emphasizes human dignity and the rule of law as part of the objective order of values it establishes. The doctrine of Drittwirkung (horizontal effect) is discussed using a private law suretyship case (similar to the case presented in Chapter 7) to show how the constitutional order now impacts private law.
This article suggests a new interpretative framework for Article 27(2) of the Fourth Geneva Convention, which prohibits sexual violence against women in armed conflict. One specific aspect of this norm is particularly controversial: the notion of ‘honour’ has often been criticised as an obsolete concept linked to an outdated view of female morality. In the absence of a definition of the term, this article examines whether the gendered limitations of the norm can be overcome and the extent to which an evolutive interpretation of the concept is feasible. It argues that the concept of ‘honour’ can be treated as a generic term that is subject to evolutive interpretation, allowing for a renewed and gender-sensitive understanding to be developed, aligned with the concept of human dignity.
ChatGPT launched in November 2022, triggering a global debate on the use of artificial intelligence (AI). A debate on AI-enabled lethal autonomous weapon systems (LAWS) has been underway far longer. Two sides have emerged: one in favor and one opposed to an international law ban on LAWS. This essay explains the position of advocates of a ban without attempting to persuade opponents. Supporters of a ban believe LAWS are already unlawful and immoral to use without the need of a new treaty or protocol. They nevertheless seek an express prohibition to educate and publicize the threats these weapons pose. Foremost among their concerns is the “black box” problem. Programmers cannot know what a computer operating a weapons system empowered with AI will “learn” from the algorithm they use. They cannot know at the time of deployment if the system will comply with the prohibition on the use of force or the human right to life that applies in both war and peace. Even if they could, mechanized killing affronts human dignity. Ban supporters have long known that “AI models are not safe and no one knows how to reliably make them safe” or morally acceptable in taking human life.
With the promulgation of the Autonomous Driving Act in summer 2021, Germany took the worldwide lead on regulating self-driving cars. This Article discusses the (non-)regulation of moral dilemmas in this act. To this end, it clarifies the role of the so-called trolley problem, which influenced the report of the German Ethics Commission that paved the way for this act in particular and the relationship between philosophical reasoning, empirical studies, and the law in general. By introducing the international legal community to the (non-)regulation of moral dilemmas in the German act, the Article critically reviews the German goal, which is to serve as a European and international role model. This will be preceded by a discussion as to why self-driving cars should be allowed as well as the moral dilemmas they cause which should be regulated by the law.
Using the lens of immigration and asylum, this Article develops a new understanding of legal personhood on the basis of equal human dignity, as the interface between legal personhood, equality and human rights, in order to address the dual-faceted and opposing reality of immigrants and asylum claimants in relation to their equality as humans in the order of nature and their inequality within the social/political order of Europe, where they are subjected to a constant process of depersonification and reification. This reformulated approach to legal personhood not only seeks to remove the debasement and dehumanisation that has come to characterise European Union (EU) immigration and asylum law but also intends to address the limitations of the Common European Asylum System (CEAS) as a valid platform for translating the EU’s own self-proclaimed commitment to human rights into justiciable normative claims.
This article addresses the challenge of conceptualizing the practice of religious proselytism in the context of international human rights law and its significance for the law of religious freedom. The author examines the evolving approach taken to religious proselytism within the landscape of human rights law, revealing that important aspects of religious freedom risk being lost given complex positive and negative views on proselytization. The author then explores the concept of human dignity and argues that there are relational and interactive dimensions associated with human dignity that are obscured in the international legal discourse of religious freedom. Recovering these dimensions of dignity will help address religious proselytization in international human rights law and reinvigorate the law of religious freedom.
Although the virtues are implicit in Catholic Social Teaching, they are too often overlooked. In this pioneering study, Andrew M. Yuengert draws on the neo-Aristotelian virtues tradition to bring the virtue of practical wisdom into an explicit and wide-ranging engagement with the Church's social doctrine. Practical wisdom and the virtues clarify the meaning of Christian personalism, highlight the irreplaceable role of the laity in social reform, and bring attention to the important task of lay formation in virtue. This form of wisdom also offers new insights into the Church's dialogue with economics and the social sciences, and reframes practical political disagreements between popes, bishops, and the laity in a way that challenges both laypersons and episcopal leadership. Yuengert's study respects the Church's social tradition, while showing how it might develop to be more practical. By proposing active engagement with practical wisdom, he demonstrates how Catholic Social Teaching can more effectively inform and inspire practical social reform.
Obergefell v. Hodges, the 2015 Supreme Court decision establishing a constitutional right for same-sex couples to marry, marked the first time in the Court’s history that justices explicitly disagreed over the meaning and requirements of human dignity. In his dissenting opinion Clarence Thomas sought to reclaim rather than simply reject the language of dignity, advancing a conception of dignity that differed sharply from the conception embraced by the majority. Using this disagreement as a point of departure, this article demonstrates how dignity has served as an extra-textual value that underpins divergent visions of American constitutionalism that, in turn, inform interpretations of the Constitution’s text and history.
This chapter discusses the right to health as it is protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is paid to eg access to health care, quality of health care, positive obligations and informed consent. In the final section, a short comparison between the different instruments is made.
The chapter traces the origins of human dignity, showing how it was originally used to denote titles of honor but is now seen as a universal human right or as undergirding universal human rights. In the context of discussing dignity rights, the chapter highlights international human rights treaties and national constitutions making refeerence to the concept of human dignity, which, in modern usage, has to do with the inherent worth of a life. The chapter discusses how human dignity is the foundation for many human rights, including the right to life, the right to be free from torture and other forms of cruelty, and the right to be free of discrimination. The chapter describes existing jus cogens norms prohibiting various acts that violate fundamental human rights, concluding that the death penalty must be abolished because it makes use of credible death threats, inflicts psychological torture, and violates an array of basic human rights. The chapter details how non-lethal corporal punmishments have already been abandoned and how the death penalty has been abolished or curtailed in many countries, with international criminal law tribunals precluding the death penalty's use.
The Conclusion summarizes the book's major themes and arguments, concluding that the death penalty has the immutable characteristics and indicia of torture. The Conclusion asserts that capital punishment violates fundamental human rights, including the right to be free from torture. Non-lethal corporal punishments and mock executions have already been prohibited by law, and the Conclusion asserts that capital punishment should be barred by an existing jus cogens norm--the peremptory norm of international law absolutely prohibiting torture--to stigmatize the practice of capital punishment as a torturous one that has no place in the twenty-first century or in law.