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Über dieses Buch

This edited book by Mills and Karp brings together political, legal and moral perspectives on the responsibilities of human rights protection in world politics today. It critiques a narrow focus on states' 'violations' of human rights, incorporates non-state actors, and looks beyond the 'Responsibility to Protect' policy framework.

Inhaltsverzeichnis

Frontmatter

Responsibility and Human Rights

Frontmatter

1. Introduction: Human Rights Responsibilities of States and Non-State Actors

The 2005 World Summit recognized the responsibility to protect. In one sense, this might be considered a normative revolution: a sign that the international human rights regime has reached a middle stage in a ‘lifecycle’ that has the potential to end in states’ internalization of the obligations of human rights protection (Finnemore and Sikkink 1998). In another sense, however, this was just a re-statement and consolidation of a long list of human rights responsibilities states have already taken on. These have been applied inconsistently, even hypocritically, over the last 65 years, as the modern human rights regime has developed (Krasner 1999). Looking beyond the text of the World Summit resolution itself and into its meaning and implications for theory and practice, we can ask: what is the best way to explain and understand these developments?

David Jason Karp, Kurt Mills

2. Humanitarianism and Responsibility in Discourse and Practice

On 17 March 2011, the United Nations Security Council (2011a) adopted a historic resolution authorizing the use of ‘all necessary measures […] to protect civilians’ in Libya. Speaking on behalf of a government that had been among the most vocal advocates of military intervention, the French Foreign Minister Alain Juppé (United Nations Security Council 2011b) implored his fellow Council members: ‘Every hour and day that goes by increasing the burden of responsibility on our shoulders. If we are careful not to act too late, the Security Council will have the distinction of having ensured in Libya law prevails over force, democracy over dictatorship and freedom over oppression.’ Speaking a year later about another of the Arab Spring’s bloodier conflicts, Jordanian Interior Minister Ghaleb Zu’bi (Neimat 2013) pledged not bombs but safe haven for the thousands pouring over the border from Syria. ‘Jordan has a humanitarian [responsibility] to Syrian refugees and cannot turn its back on them.’ That same year, the British-based nongovernmental organization Oxfam decried the failure to help victims of the latest Somali famine: ‘There has been a catastrophic breakdown in the world’s collective responsibility to act (Oxfam International 2011).’ In 2010, after the Haitian earthquake, George Clooney, actor and organizer of the ‘Hope for Haiti Now’ telethon, told millions of viewers, ‘We all have a lot of responsibility to look out for people that can’t look out for themselves’ (Viacom 2010).

Glenn Mitoma, Kerry Bystrom

States’ Responsibilities: Beyond ‘Violations’ of Human Rights

Frontmatter

3. Doctrinal Innovation and State Obligations: The Patterns of Doctrinal Development in the Jurisprudence of the UN Committee on Economic, Social and Cultural Rights

When we focus on accountability for human rights abuses, we are likely to follow the path of certain familiar associations. The key issue seems to be how obligations come to be institutionally associated with human rights norms: accountability invites an institutional (and thereby legal) perspective.1 International human rights law looks like the primary framework for specifying exact human rights obligations — especially for State Parties.2 And the most straightforward mechanism for setting specifically legal obligations is the creation of binding legal documents (e.g., by way of multilateral human rights treaties). In this chapter, I will stay focused on the institutional aspects of accountability but I shift the attention to an alternative to drafting treaties: breaking down the normative implications of recognized human rights by way of doctrinal reasoning. This mechanism relies on the normative competence of tribunals or human rights bodies in consolidating innovative ways of interpreting existing legal documents. I seek to contribute to understanding better this ‘doctrinal route’ of specifying human rights obligations.

Mátyás Bódig

4. Indivisible Human Rights and the End(s) of the State

The rhetoric of indivisible human rights has a long history, dating back at least to the initial division of the draft International Covenant on Human Rights into separate treaties in the early 1950s. Prior to that, there was no need to speak of the relationship between the two ‘grand categories’ of human rights as being ‘indivisible’ — the 1948 Universal Declaration of Human Rights includes both sets of rights, and all of the influential antecedents of the Universal Declaration had included a catalogue of key economic and social rights alongside ‘traditional’ civil and political rights. But the Declaration, by its very nature, was void of legally binding obligations or measures of implementation. When the time came to translate its principles into binding treaty law, divisions emerged over the different obligations that were deemed appropriate for the realization of the two sets of rights.

Daniel J. Whelan

5. Beyond Individual Accountability: The Meaning of State Responsibility

The essence of human rights is to protect individuals, and two different approaches have evolved to accomplish this. The first involves holding individuals criminally accountable for directing and/or carrying out violations of international humanitarian law and human rights standards. Certainly, the Nuremberg and Tokyo proceedings against a select group of political, military, and economic leaders from Germany and Japan remain the high-water mark of establishing individual accountability, yet in the past decade or so the animating spirit of these trials has been revived. One of the most noteworthy achievements in this realm was the worldwide effort to extradite the former Chilean dictator Augusto Pinochet to Spain so that he could face charges for international crimes committed under his rule. Beyond this, the International Criminal Tribunals for Yugoslavia (ICTY) and Rwanda (ICTR) have both made significant contributions in terms of prosecuting and punishing war criminals, as have the special UN tribunals in East Timor, Sierra Leone, and Cambodia. But certainly the most noteworthy institutional achievement has been the creation of the International Criminal Court (ICC). What explains this attention to individual accountability? Perhaps the best answer was provided by the Nuremberg court (1946) itself and repeated frequently since then: ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’

Mark Gibney

Responsibilities of Non-State Actors

Frontmatter

6. Putting the Blame on Governments: Why Firms and Governments Have Failed to Advance the Guiding Principles on Business and Human Rights

Some 67 years after the Holocaust, Guillaume Pepy, the chairman of Société Nationale des Chemins de fer français (SNCF), the French national railway company, apologized for transporting 76,000 people to Nazi death camps during World War II. Pepy acknowledged that his firm’s failure to respect human rights in the past was creating business risks in the present, and he feared that US state legislators would block the company from competing for high-speed rail contracts (de la Baume 2011).

Susan Ariel Aaronson, Ian Higham

7. The Concept of Human Rights Protection and the UN Guiding Principles on Business and Human Rights

What does it mean to have a duty to ‘protect’ human rights? Neither political philosophy nor international political practice has furnished a single, uncontested answer to this question. In fact, one can distinguish between at least three different conceptions that are grounded in the contemporary practice of human rights. The first conception has come out of international-level work on the right to food in the 1980s, and has crystallized in the form of the respect-protect-fulfill trichotomy (hereafter: ‘the trichotomy’) (Eide et al. 1984; Shue 1996: 52–53; Koch 2005; Donnelly 2008: 124; Pogge 2011: 5–6).2 The trichotomy defines the responsibility to protect human rights in terms of a duty, which usually falls on states, to stop third parties from depriving individuals of access to the objects of their human rights. The paradigm of this first conception is a government stopping non-state actors from doing harmful things to others in domestic contexts. The second conception is even more recent, coming out of practitioner work by the International Committee on Intervention and State Sovereignty in the 1990s, and becoming further developed in the 2000s in the form of the ‘Responsibility to Protect’ policy doctrine (ICISS 2001).3 It defines the responsibility to protect human rights in terms of a cosmopolitan and specifically international duty of all states to all of the people in the world.

David Jason Karp

8. Human Rights Ltd.: An Alternative Approach to Assessing the Impact of Transnational Corporations on Human Rights

The state has been traditionally considered as the main duty-bearer in relation to human rights given its superior powers and capacities compared to other actors. However, this traditional view has been challenged given that the assumptions under which the current human rights regime emerged have suffered significant transformations in recent decades. It has become recognized that non-state actors may also be allocated some duties in relation to human rights, especially as some of them rival the economic and organizational powers of the state, enabling them to interfere in the realization of human rights but also putting them in a position to protect and fulfill them. This view, along with the apparent inability and unwillingness of some states — for example, quasi-states, failed and weak states — to protect and fulfill the human rights of their populations have contributed to the existence of a perceived ‘governance gap:’ that is, a vacuum in the effective regulation of non-state actors’ activities (Koenig-Archibugi 2004: 235; Macdonald 2011: 549).

Flor González Correa

9. Living Up to Human Rights Responsibilities: Lawyers and Law Firms in the Chinese Authoritarian Context

This chapter explores the responsibility of non-state actors — lawyers and law firms specifically — to protect human rights and examines the challenges and dilemmas they face when operating in an authoritarian context. The questions we explore in this chapter grew out of the authors’ work in China1 and collaborations with both Chinese lawyers and activists acting for the promotion and protection of human rights, and with the foreign legal community. Disappointed by the silence of foreign law firms at the detention of Chinese lawyers, we ask: what are the challenges law firms and lawyers face when they decide to ‘go global,’ particularly when operating in authoritarian countries with weak legal systems? We have sought to frame our concerns within the debate about the human rights obligations of non-state actors. As critical actors in the administration of justice, lawyers would seem to have an important role to play in the protection of human rights and in shaping domestic and international human rights discourses. In their quest for justice on behalf of their clients, lawyers have the potential to contribute to the creation of the legal tools and arguments against human rights abuses and their cases help shape public understanding of the law. Lawyers engage with the media and influence public opinion; they lobby governments and, importantly, have a deep impact on the way in which the business world operates.

Nicola Macbean, Elisa Nesossi

10. Fulfilling the Right to Education? Responsibilities of State and Non-State Actors in Myanmar’s Education System

During nearly 50 years of military rule, Myanmar1 was frequently singled out for its bad human rights record. Although international attention focused primarily on violations of civil and political rights, Myanmar is also a developing country in which many economic, social, and cultural rights remain unfulfilled. The importance of these rights and the interrelatedness with civil and political rights have been frequently emphasized in human rights theory and practice (see Chapter 4 by Whelan in this book). Education is one example of a right that is now considered universal and indispensable for a country’s development.

Maaike Matelski

The Responsibility to Protect

Frontmatter

11. What Responsibilities Does the International Community Have in Complex Humanitarian Crises and Mass Atrocity Situations?

This book is about what human rights responsibilities states and other actors have and how these responsibilities have been conceptualized and implemented (or not). One other significant question is how various responsibilities interact — and how does one choose among several, sometimes conflicting, responsibilities. Nowhere is this more relevant than in the debate over how to respond to mass atrocities and associated humanitarian crises. Certainly when a Somalia or Darfur or Syria appears, there are cries of ‘never again’ and calls to do ‘something,’ although what that ‘something’ is is frequently not specified. The choices facing policy makers may be unpalatable and the ‘something’ that is done is frequently not what is required. This raises further questions about political will to stop such atrocities.

Kurt Mills

12. Grappling with Double Manifest Failure: R2P and the Civilian Protection Conundrum

Civilian protection is a vexing issue facing humanitarian practitioners and policy makers, particularly in settings where host states engage in or allow mass atrocity crimes to be perpetrated against their populations.2 International humanitarian law asserts a defense of the legal status and rights of civilians in situations of armed conflict. Individuals not actively involved in hostilities either by laying down their arms or owing to civilian status, sickness, injury, or detention shall be treated humanely in all circumstances, without ‘adverse distinction,’ and be protected from violence to life and person; hostage-taking; outrages upon personal dignity; and extrajudicial procedures or summary executions.3 International human rights law complements these provisions, emphasizing that host states bear a primary responsibility to protect their populations from violations of a wide range of universal rights, including crimes such as genocide, war crimes, ethnic cleansing, and crimes against humanity (UNGA 2009: para. 3).

Melissa T. Labonte

13. Prevention Cascade: The United States and the Diffusion of R2P

In 2004, Sudan won a third term on the Human Rights Commission at the very moment its government was carrying out a genocide in Darfur. The juxtaposition exposed the abysmal job the global governance system has done of living up to its responsibilities under the Genocide Convention (1948), which requires states both to prevent genocide and punish perpetrators (Convention on Genocide, 1948). Despite continuing failures, however, over the past two decades, the duty to punish has begun to be fulfilled. The establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda, the International Criminal Court, and other post-conflict and transitional justice processes have given institutional power to a new norm of international criminal accountability, which has spread across the globe, rapidly albeit unevenly, in what Kathryn Sikkink has called a ‘justice cascade’ (Sikkink 2011).

Michael Galchinsky

14. Argumentation and the Responsibility to Protect: The Case of Libya

On 18 March 2001, UN Security Council Res. 1973 enabled NATO forces to implement a protection of civilians mandate to limit the harm Muammar Gaddafi’s military could inflict on the armed uprising against his rule. After seven months of bombardment from sea and air, forces loyal to the National Transitional Council were able to topple the Gaddafi regime and install a new government. This short empirical description of the Libyan case just about exhausts the degree of consensus that exists about the intervention. The UN and its leading Member States were criticized before the authorized action for not responding quickly enough, for changing the mandate to the need to remove Gaddafi, and subsequently for turning a blind eye to atrocities performed by the anti-Gaddafi revolutionaries (Milne 2011; UN OHCHR 2012). This kind of contestation around interventions for humanitarian purposes flows directly from the tension between the legitimacy attributed to universal human rights and the relative weaknesses associated with their legal protection and redress (Habermas 1999), a topic widely canvassed in other chapters of this book.

Tim Dunne, Katharine Gelber

Backmatter

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