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Vol 21 No 9 Sept/Oct 2016

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Paradigms of International Human Rights Law

ISBN13: 9780190611279
Published: August 2016
Publisher: Oxford University Press USA
Country of Publication: USA
Format: Hardback
Price: £55.00

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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.

Human Rights and Civil Liberties
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
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
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