Between Rights and Responsibilities: A Fundamental Debate

Between Rights and Responsibilities: A Fundamental Debate




The last decade has witnessed an increased criticism against the human rights paradigm for its obsession with the 'culture of claims and rights.' According to the critics, this culture has led to an obsession with the rights of individuals at the expense of due attention to groups and to communities worldwide, resulting in the neglect of responsibilities and duties. It is also argued that there should be a shift from the Western emphasis on the rights for individuals to more attention to the responsibilities of individuals and collectivities as present in other cultures of the world. Several documents have been drafted to this effect. These discussions, and the ensuing documents, are far from only theoretical or abstract. They bear consequences in everyday life as evidenced in a number of areas, such as globalization, terrorism, multiculturalism, etc. This book examines this important human rights debate.

Product Details

ISBN-13: 9789050958868
Publisher: Intersentia
Publication date: 09/30/2012
Pages: 264
Product dimensions: 6.25(w) x 9.50(h) x 0.60(d)

About the Author

Stephan Parmentier studied law, political science and sociology at the universities of Ghent and Leuven (Belgium) and sociology and conflict resolution at the Humphrey Institute for Public Affairs, University of Minnesota-Twin Cities (U.S.A.). He currently teaches sociology of crime, law, and human rights at the Faculty of Law of the University of Leuven and is the former head of the Department of Criminal Law and Criminology (2005-2009). He is in charge of international relations in criminology at Leuven University and in July 2010 was appointed Secretary-General of the International Society for Criminology (re-elected in August 2014). He also serves on the Advisory Board of the Oxford Centre of Criminology and the International Centre for Transitional Justice (New York). He has served as a visiting professor (Oñati, San José, Sydney, Tilburg, Tokyo), visiting scholar (Oxford, Stellenbosch, Sydney) and guest lecturer in the fields of human rights, criminology and socio-legal studies. He is editor of the newly established Restorative Justice International Journal (Hart Publishing, Oxford). He co-directs the Flemish Interuniversity Network on Law and Development and co-organises the summer course on Human Rights for Development. He also serves as a referee to the ERC funding scheme of the European Union, and other national and international research foundations.

Table of Contents

Foreword v

About the Authors xiii

Introduction. Towards an Integrated Vision of Rights and Responsibilities Stephan Parmentier Hans Werdmölder Michaël Merrigan 1

1 From Rights to Responsibilities: Broadening the Paradigm 3

2 From Agenda-Setting to Implementation: Developing an Agenda for Action 5

3 From Legal and Philosophical Discussions to a Grounded Debate: Socialising the Forum 6

4 Introducing this Volume 7

Part I Fundamental Rights and Fundamental Responsibilities: Setting the Scene

Human Rights and Human Responsibilities. Setting the Ethical and the Conceptual Scene René Foqué 13

1 Introduction 13

2 Setting the Ethical Scene 14

2.1 Three Proposals for Charters of Human Responsibilities 14

2.2 Calibrating the Balance; the Ethical Dimension 16

2.3 Responsibility Autonomy, and the Capacity for Reflection 17

2.4 Responsibility and the Heuristics of Fear 20

2.5 Responsibility-in-Context 22

2.6 Another Cosmopolitanism 24

3 Setting the Conceptual Scene 25

3.1 Responsibility as a Hidden Aspect of Human Rights 25

3.2 Kant's Abstract Moral Duty 27

3.3 Criticising the Kantian Morality of Duty: Rethinking the Ethical Perspective 28

3.4 Human Rights and Human Responsibilities 30

4 Conclusions 33

4.1 The Need for Conceptual Clarity 33

4.2 The Ethical and the Conceptual Have to Meet Each Other in a Political Context 33

4.3 Do Not Transform the Ethical Life of a Society in Terms of Legal Obligations 34

Rights, Responsibilities and Duties for the Civil Society. Moral Challenges Put Forward by the Millennium Development Goals Willem Van Genugten 35

1 Introduction 35

2 A Few Historical Remarks 36

3 The Present Way of Looking at Duties 37

4 Moral Duties for Individuals and their Organisations? 41

5 Concluding Remarks 48

Steering Clear of the Twin Shoals of a Rights-Based Morality and a Duty-Based Legality Douglass Cassel 51

1 The Poverty of a Rights-Based Morality 52

2 A Religious Perspective 53

3 Affirmative Duties in International Human Rights Instruments 55

3.1 Universal Declaration of Human Rights 56

3.2 American Declaration of the Rights and Duties of Man 56

3.3 African Charter of Human and Peoples' Rights 58

4 Duties as Restrictions on Rights 59

5 Codifications of Duties 60

6 'Horizontal' versus 'Vertical' Duties 63

7 Conclusion 64

Human Duties and Responsibilities for the Reinforcement of Human Rights. The Declaration of Human Duties and Responsibilities (1998) Patricia Morales 67

1 The Duties and Responsibilities of the DHDR 69

1.1 The Right to Life and Human Security 70

1.2 Human Security and an Equitable International Order 72

1.3 Meaningful Participation in Public Affairs 74

1.4 Freedom of Opinion, Expression, Assembly, Association and Religion 75

1.5 The Right to Personal and Physical Integrity 75

1.6 In Search of Equality 76

1.7 Protection of Minorities and Indigenous Peoples 77

1.8 Rights of the Child and the Elderly 78

1.9 Right to Work, Quality of Life and Standard of Living 78

1.10 Right to Education, Arts and Culture 79

1.11 Right to a Remedy 80

2 Solidarity as the Road to Fulfilling the Responsibilities and Duties for Human Rights 80

3 Final Remarks 81

Part II Rights and Responsibilities in Specific Contexts

Human Rights in a Globalising Economy. Is the Right to Social Protection Qualified by a Duty to Work? Wouter Vandenhole 85

1 Introduction 85

2 Cultural Relativism and Human Responsibilities 87

3 The Neo-Liberal Challenge: Balancing the Right to Social Protection and the Duty to Work 91

3.1 International Covenant on Economic, Social and Cultural Rights 94

3.2 ILO Convention No. 168 on Employment Promotion and Protection against Unemployment (1988) and the European Code of Social Security 96

3.3 (Revised) European Social Charter 100

4 Conclusions 112

Human Rights in a Globalising Economy. Rights and Responsibilities of Trade Unions Barbara J. Fick 113

1 Introduction 113

2 Unions as Beneficiaries of Human Rights Protection 114

3 The 'Traditional' Role of Trade Unions 115

4 The Importance for Unions to Perform a Broader Role 117

5 Are Trade Unions Fulfilling their Responsibility? 120

6 The Way Ahead 122

Fundamental Rights and Responsibilities within a Multicultural Society Marlies Galenkamp 125

1 Introduction 125

2 Rights and Responsibilities 126

3 The Absolutism of Fundamental Rights in Dutch Discourse 128

4 Lessons from Ownership: No Abuse of Rights 131

5 Fundamental Rights: Freedoms and Responsibilities 133

6 Back to Practice 134

7 The Dark Sides of Responsibility 136

8 Freedom of Expression and Freedom of Religion within a Multicultural Society 138

From Lawless to a Human Rights Approach in the Fight Against Terrorism. The Council of Europe Standards Martin Kuijer 141

1 Introduction 141

2 The Gibraltar Case 142

3 Terrorism as a 'New' Threat 145

4 The Striking of a Balance 146

5 Making Anti-Terrorism Measures Human Rights-Proof 148

6 (Un)Accountability of Information from Intelligence Agencies in Judicial Proceedings 149

7 The Creation of a Separate Legal Space for Terrorism 154

8 Lawlessness? 155

Children's Rights at a Dignitarian Horizon of Responsible Parenthood Jan C.M. Willems 157

1 Introduction 157

2 A Helicopter View 158

2.1 Libertarian and Dignitarian Traditions 158

2.1.1 Dignitarian Developments 159

2.1.2 Dignitarian Individualism 161

2.2 Dignitarian versus Libertarian Attitudes and Views 163

2.2.1 Definitions 164

2.2.2 Some Examples 166

3 Responsible Parenthood 168

3.1 Dignitarian Language and Reproductive Rights 168

3.2 The Best Interests of the Child 170

3.3 Parental Responsibilities and State Obligations 176

3.3.1 Fifty-Plus-One Parental Duties 177

3.3.2 Empowerment Obligations 182

4 Conclusion 184

Individuals' Duties in the African Human Rights Protection System. Challenges and Prospects Mumba Malila 187

1 The Historical Background to the Establishment of the African Human Rights System 188

2 The Banjul Charter 191

2.1 An Innovative Legal Instrument 191

2.2 African Values 195

2.3 Three Generations of Rights in One Charter 197

2.4 Weaknesses 199

2.4.1 Unmentioned Rights 199

2.4.2 Vague Formulation of Rights 199

2.4.3 No Derogation Clauses 200

2.4.4 Clawback Clauses 201

3 Duties Provisions in the African Chatter 202

3.1 Duties Normally Belong to States 202

3.2 Antecedents in International Documents 203

3.3 Duties as a Reflection of African Culture 204

3.4 Charter Articles Relating to Duties 207

3.4.1 Article 27: Duties to the Family, the International Community and other Legally Recognised Communities 208

3.4.2 Article 28: Duties of Respect, Non-Discrimination, Mutual Respect and Tolerance 211

3.4.3 Article 29(1): Duties to Preserve the Harmonious Development, Cohesion and Respect for the Family, etc 212

3.4.4 Article 29(2): Duty to Serve National Community and Deploying Physical and Intellectual Abilities 214

3.4.5 Article 29(3): Duty not to Compromise National Security 215

3.4.6 Article 29(4): Duty to Preserve and Strengthen Social and National Solidarity 216

3.4.7 Article 29(5): Duty to Preserve and Strengthen National Independence and Territorial Integrity and to Contribute to its Defence 217

3.4.8 Article 29(6): Duty to Work to the Best of One's Ability and Competence, and to Pay Taxes, 217

3.4.9 Article 29(7): Duty to Preserve and Strengthen Positive African Cultural Values 218

3.4.10 Article 29(8): Duty to Contribute to the Promotion and Achievement of African Unity 219

3.5 Evaluation 220

4 Conclusion 225

Declaration of Human Duties and Responsibilities 229

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