The Future of Human Rights: History, Norms & Institutions

Part of the NWO Project ‘Human Dignity as the Foundation of Human Rights’

May 27th-29th 2015

Utrecht University

Handbook Abstracts

Index

The Future of Human Rights: History, Norms & Institutions ...... 3 Basic Information ...... 4 Schedule and Locations ...... 5 List of Delegates ...... 6 Speakers: Abstracts ...... 13 Panels: Abstracts ...... 20

2 The Future of Human Rights: History, Norms & Institutions

Rationale Bringing together lawyers, philosophers and other theorists to discuss the connection between essential human rights questions and the conceptual foundation of human rights.

Description Legal instruments give human dignity a foundational role for human rights, but this does not answer but rather raises the question how dignity (or worth, or status) can play such a role. Are there ways of justifying the human rights framework without reference to such a foundational concept? And how do different disciplines – history, law and ethics – understand this foundational concept and its role? The purpose of this workshop is to make this conceptual discussion explicit and to apply it to current human rights discourse. The workshop is part of the NWO project on ‘human dignity as the foundation of human rights’ being undertaken at the Ethics Institute of Utrecht University.

Activities

Keynote These are delivered by leading scholars in their fields. These will be partially open to the public.

PCD These are ‘Paper, Comment, Debate’ sessions involving a paper and another scholar responding directly to the paper.

Panels These are groupings of three invited speakers working in cognate areas.

CfP Panels See p 18f for abstracts for these panels.

3 Basic Information

Contact in Emergency Stephen Riley 0044 7812 982 880 / [email protected]

Local Map and Access

Note Sweelinckzaal (#6) accessible through University Library (#7); Stijlkamer in Janskerkhof 13A (Department of Philosophy Building).

Acknowledgements This work is part of the research programme ‘Human Dignity as the Foundation of Human Rights, which is financed by the Netherlands Organisation for Scientific Research (NWO). Our thanks to Biene Meijerman, Suzanne Van Vliet, Marcus Duewell, Frederike Kaldewaij, Marie Gobel, and Gerhard Bos for assistance in the organisation of this workshop.

4 Schedule and Locations

Day 1 Location

13.00-14.00 Registration Dept. of Philosophy Reception

14.00-15.45 Keynote Lynn Hunt Sweelinckzaal

16.00-17.45 PCD Dupre, Grear Sweelinckzaal

18.00-19.30 Dinner

19.45-21.45 Panels

- Panel 1 Woods / Bos / Philips Sweelinckzaal - Panel 2 Cruft / Neal / Göbel Stijlkamer

Day 2

9.00-10.45 Keynote Christopher McCrudden Sweelinckzaal

11.00-12.30 CfP Panels (1, 2, and 3) TBC

12.40-13.20 Lunch Sweelinckzaal

13.30-15.00 PCD Cliteur, Van den Brink Sweelinckzaal

15.15-16.45 PCD Toddington, Riley Sweelinckzaal

18.00-19.30 Dinner

19.45-21.30 CfP Panel (4, 5, and 6) TBC

Day 3

9.00-11.00 Panels

- Panel 1 Hamer / Zoethout / Pribytkova Sweelinckzaal - Panel 2 McGonigle Leyh / Buyse Stijlkamer

11.15-12.45 PCD Mahlmann, Duwell Sweelinckzaal

13.00 Lunch

5 List of Delegates

Timothy W. Allen, Department of Philosophy, University of Cincinnati

Dr. Mahmoud Bassiouni, Wissenschaftlicher Mitarbeiter, Goethe-Universität Frankfurt

Daniel Bedford, Lecturer in Law, University of Portsmouth

Gerhard Bos (Utrecht) is a postdoctoral researcher on a NWO funded project on human dignity as the foundation of human rights. Currently his research aims at the conceptual underpinnings of human rights, and the implications for long-term responsibilities. He did his PhD in philosophy of action and mind, on agential self- consciousness as a passive faculty. As a masters student he graduated cum laude with a master thesis on the import of Immanuel Kant’s concept of freedom. He coordinates the ESF Research networking programme ‘Rights to a Green Future’ (2011-2015) and coordinated the KNAW China Exchange Program ‘Human Dignity in the context of Bioethics: China and the West’. He is member of the European Platform for Life sciences, Mind sciences and Humanities.

Antoine Buyse (Utrecht) is professor of human rights and director of the Netherlands Institute of Human Rights (SIM) and a member of the Young Academy of the Royal Academy of Arts and Sciences. He is Editor-in-Chief of the Netherlands Quarterly of Human Rights, member of the editorial board of the Dutch human rights review, and he hosts a weblog about the European Convention on Human Rights. He is co- coordinator of the University's Focus Research Area 'Cultures, Citizenship and Human Rights' and is a connected to the Montaigne Centre for Judicial Administration and Conflict Resolution and the University's strategic theme 'Institutions'.

Paul Cliteur (Leiden) is full time professor of Jurisprudence. He was the scholarly director of the Institute for the Interdisciplinary Study of the Law (2002-2010). At present he is the chairman of the department of Jurisprudence. He was also professor of philosophy at the University of Delft (1995-2002). Cliteur’s research is in the field of ethics, the philosophical foundations of the law, more in particular moral dilemmas around multicultural society, fundamental rights and the relationship between law and worldviews.

Rowan Cruft (Stirling) is Senior Lecturer in Philosophy at Stirling, where he has worked since 2002. His research aims to reveal the comparative importance of different forms of right including human rights, natural rights, contractual rights, property rights, legal rights. He defends the view that human rights are in one sense pre-legal natural rights distinguished by their individualistic grounding, while many other important rights including property are socially created and non- individualistically justified. He has participated in policy development for NGOs and government, and in public inquiries including as an invited witness at the Leveson Inquiry and as co-author of a submission to the Commission on a Bill of Rights for the UK. He is co-editor of the multi-author, interdisciplinary Philosophical Foundations of Human Rights (OUP forthcoming 2015).

6 Catherine Dupre (Exeter) is currently developing a critical philosophical reflection on the uses and meanings of human dignity in the context of human rights adjudication across Europe. This project spans the fields of comparative law and jurisprudence and is anchored in an integrated European approach bringing together the EU and ECHR levels with a range of national orders, such as Germany, France, Hungary and the UK. The overall aim is to propose a new theoretical framework for human rights in the 21st century and to explore how the dignity-based human rights thinking affects the concept (and practice) of constitutionalism in Europe.

Dascha During, PhD Candidate Utrecht University. Dascha took her bachelor's and research master in philosophy at Utrecht University. She graduated cum laude (2013) on a thesis on the concept of duty in Confucianism and Kantianism. Since 2013 she is working on a comparative PhD thesis on concepts of humanity in Chinese and Western philosophical traditions. Her research areas are comparative ethics and aesthetics, with a primary focus on Kant, Nietzsche, and early 20th century German philosophy; and classical Confucianism. She is currently acting co-ordinator of the Ethics Institute KNAW China Exchange Programme.

Marcus Duwell (Utrecht) is Professor of Philosophical Ethics at Utrecht University. He is research director of the Ethics institute of Utrecht University. His research concentrates on questions concerning the foundation of morality and on applied ethics in its relation to ethical theory and political philosophy. He is a member of the academic board of the Akademie für Ethik in der Medizin and of the editorial boards of Ethical Perspectives (Peeters) and Ethik in der Medizin (Springer). He is also a member of the advisory board of Handbook of Ecological Communication (Kluwer Academic Publishers), and Editor-in-Chief of the book series "Ethics and Applied Philosophy" (Springer).

Nina van Egmond, PhD Candidate VU University received her Master degree cum laude from VU University, Amsterdam (2011). Her master thesis compared and contrasted the universal claim of Martha Nussbaum’s capabilities approach with the practice of an Indonesian Islamic women’s rights centre (RAHIMA). The link between ethical theory and social, religious, and political realities is a continuous theme in her career, which involves both academic work and International NGO involvement. From 2009 to 2012 she worked at the MEDOC project of Medicine du Monde, the Netherlands, aiming to enhance the health rights of undocumented migrants. She currently lives in the UAE, and is a PhD candidate at VU University, Amsterdam. Her research focuses on migration and human rights, and aims at understanding how rights restrictions curb the capabilities and functioning of migrant workers, and affect national interests, of both sending and receiving countries. Central questions involve what a decent package of rights for non-citizens would involve, and who’s accountable?

Josh Entsminger Edinburgh University

Liesbeth Feikema, PhD Candidate Utrecht University

Marie Göbel (Utrecht) is a PhD researcher in the NWO Vici project “Human Dignity as the Foundation of Human Rights?” at Utrecht University, department of philosophy. In her PhD project she investigates the conceptual relations between the

7 notions of human dignity, human rights, and democratic change, with a focus on political conceptions of human dignity and human rights. Other areas of philosophical interest include Kantian practical philosophy, the relation between morality and legality, and theories of radical democracy.

Anna Grear (Cardiff) calls on insights from a range of disciplines despite being firmly located within a combination of critical legal theory and jurisprudence. She has a particular interest in the relationship between human rights and the environment, and in the theme of legal subjectivity, locating these in relation to contemporary globalisation and to a central concern with the implications of the materiality of the living order – including the theme of lived embodiment. Anna is the founder and co- editor in chief of the Journal of Human Rights and the Environment, and is founder and director of the Global Network for the Study of Human Rights and the Environment (GNHRE).

Jurriën Hamer (Utrecht) holds Master degrees in law and philosophy and currently works as a phd-student in the VICI-project 'Human Dignity as the Foundation of Human Rights', headed by Prof. Dr. Marcus Düwell. His research is primarily aimed at understanding the role human rights should play in the functioning of political institutions. Questions such as 'which political body should guard human rights?' and 'which human rights should always be legally enforced?' form the heart of his dissertation project.

Tom Herrenberg, PhD Candidate Leiden Law School

Lynn Hunt (UCLA) is Distinguished Research Professor and Eugen Weber Professor of Modern European History Emerita at UCLA. Before coming to UCLA she taught at the University of Pennsylvania (1987-1998) and the University of California, Berkeley (1974-1987). She is currently working on a book about women and modernity. Her most recent books examine the origins of human rights in the eighteenth century, Inventing Human Rights (2007), the question of time and history writing, Measuring Time: Making History (2008), early 18th century views of the world's religions, The Book that Changed Europe (with M. Jacob and W. Mijnhardt, 2010), and Writing History in the Global Era (2014). She was President of the American Historical Association in 2002 and is a member of the American Philosophical Society and the American Academy of Arts and Sciences and a corresponding member of the British Academy.

Sem de Maagt, PhD Candidate Utrecht University

Matthias Mahlmann (Zurich) is University Professor of Law, Chair of Philosophy and Theory of Law, Legal Sociology and International Public Law, Faculty of Law, University of Zurich, Switzerland. Since 2005 Recurrent Visiting Professor, Central European University, Budapest, Hungary. 2007 Heisenberg-Fellowship of the Deutsche Forschungsgemeinschaft. Visiting Professor at the Hebrew University, Jerusalem, 2007 and the Georgetown University Law Center, Washington, D.C., 2012. Areas of research: International Public and Constitutional Law, International Human Rights Law, European Law, Practical Philosophy and Legal Sociology, Cognitive Science, Ethics and Law. In addition to a number of monographs he has undertaken consultancy work for various parliamentary and governmental public

8 bodies in Europe. Since 2002 Independent Legal Expert for Anti-Discrimination Law for the European Commission. Since 2012 member of the Swiss Federal Ethics Committee on Non-Human Biotechnology. Member, Research Council, Swiss National Science Foundation; Selection Panel Member, European Research Council. Since 2013 President of the Swiss Association for Philosophy of Law and Social Philosophy

Christopher McCrudden (QUB) is a professor of human rights and equality law at Queens University Belfast, and a practicing barrister-at-law with Blackstone Chambers. Specializing in human rights, he concentrates on issues of equality and discrimination as well as the relationship between international and comparative human rights law. Prof. McCrudden is the author of Buying Social Justice (Oxford University Press, 2007), a book about the relationship between public procurement and equality, for which he was awarded a certificate of merit by the American Society of International Law in 2008, and (with Brendan O'Leary) Courts and Consociations (Oxford University Press, 2013), about the tensions between human rights and ethnic power-sharing arrangements that are common in peace agreements. Most recently, he has edited the multi-disciplinary volume, Understanding Human Dignity (Oxford University Press, 2013). He serves on the editorial boards of several journals, including the Oxford Journal of Legal Studies, the International Journal of Discrimination and the Law, and the Journal of International Economic Law, and is co-editor of the Law in Context series.

Brianne McGonigle Leyh (Utrecht) is an attorney specializing in international criminal law and procedure, human rights, victims’ rights and transitional justice. She received her Bachelors degree (BA) from Boston University, graduating magna cum laude with a self-crafted major in the study of international law and human rights, her Law degree (JD) from American University’s Washington College of Law, graduating cum laude, and her Masters (MA) in International Affairs from American University’s School of International Service. In 2011 she obtained her PhD from Utrecht University’s Netherlands Institute of Human Rights (SIM) where she wrote her dissertation on victim participation in international criminal proceedings. Currently, she is an assistant professor with SIM where she is an executive editor of the Netherlands Quarterly of Human Rights and co-coordinates the LLM in International Human Rights and Criminal Justice.

Mary Neal (Strathclyde) is a Senior Lecturer in Law at the University of Strathclyde in Glasgow. She obtained her PhD from Cardiff University in 2005. Her main research interests are in Healthcare Law, Bioethics, and Legal Theory, particularly beginning and end of life issues, theories of property, and meta-disciplinary concepts such as dignity, sanctity, and love. Her previously-published work includes articles on dignity and language-games, dignity and vulnerability, and dignity as the 'substantive basic norm' of just legal systems; her current work-in-progress focuses on rights of conscience, abortion, and assisted dying, and on Jeremy Waldron’s concept of ‘rank’ in dignity discourse. In February 2014 she was appointed as adviser to the Parliamentary Committee scrutinising the Assisted Suicide (Scotland) Bill.

Jos Philips (Utrecht) is Lecturer in Political and Social Philosophy and Ethics. Jos holds a PhD in philosophy from Radboud University Nijmegen (2007). His research interests are in the areas of global justice, human rights, and sustainability. He has

9 published various articles on individual responsibilities in relation to poverty, on NGO responsibilities, and on conceptual questions of human rights. Together with Joel Anderson he edited Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities (Netherlands Institute of Human Rights, 2012).

Elena Pribytkova (Columbia) graduated from St. Petersburg State University and received a doctoral degree from the Institute of State and Law of the Russian Academy of Sciences. Following that, she held various research and teaching appointments at universities of Moscow, Heidelberg, Bochum, Nijmegen and Basel. Currently, she is an SNSF Ambizione Fellow at the Faculty of Law of the University of Basel and a J.S.D. Candidate at Columbia Law School.

Stephen Riley (Utrecht) received his PhD in law from Lancaster University and is currently a postdoctoral researcher on an NWO funded project concerning human dignity as the foundation of human rights. He works in the philosophy of law and his research focus is human dignity as a component of legal systems. This is addressed directly in published and forthcoming work on human rights’ foundations, the rule of law, and the sources of international law. These foundational analyses are applied to specific issues in criminal justice, international criminal justice, and intergenerational justice. His longer-term project is to unify this work around an account of human dignity understood as both philosophical anthropology and as source of obligation.

Daniela Ringkamp, Research Assistant in Philosophy University of Magdeburg. Daniela studied Philosophy, media Science and German Literature at the Universities of Paderborn and Bielefeld (Germany). In 2002, she spent a semester at the University of Ouagadougou (Burkina Faso). She received a MA in Philosophy in 2005, from 2006-2008 she got a PhD-scholarship from the “Studienstiftung des Deutschen Volkes” (German national Academic Foundation). From 2008-March 2015, she was research assistant at the Chair of Practical Philosophy of the University of Paderborn, since April 2015, she is research assistant in Philosophy at the University of Magdeburg/Germany (chair: Prof. Dr. Héctor Wittwer). In 2012 she finished her PhD about “Menschenrechte zwischen moralischer Begründung und politischer Verwirklichung. Eine Neubetrachtung der Adressierung von Menschenrechtspflichten“ (engl.: Human rights between moral foundation and political implementation. A new consideration about adressing human rights duties). She now works on a post-doc-project about dementia and personhood. Her research interests are normative and applied ethics (medical ethics, dementia, brain death), political philosophy and philosophy of law, the philosophy of human rights and Immanuel Kant’s practical philosophy.

Prof. Dr. Markus Rothhaar, Katholische Universität Eichstätt-Ingolstadt

Dr. Hubert Schnüriger, Wissenschaftlicher Assistent, Universität Basel

Jamaseb Soltani, PhD Candidate University Leiden

Stuart Toddington (Huddersfield) took up the post of Professor of Jurisprudence at Huddersfield in September 2011 and teaches Administration of Justice and Human Rights Law, the Law of Torts and supervises a range of PhDs. In 2005 he accepted a

10 Chair in Jurisprudence at Westminster where he published Architectures of Justice. His first lectureship came in 1989, in Jurisprudence and Public Law at The University of Hull where he taught until 1999. In 1993 he published Rationality, Social Action and Moral Judgement with Edinburgh U.P and in this period was also visiting lecturer in Socio-Legal Studies at Sheffield, where Stuart taught the epistemology and methodology components of the MA in Socio-legal Studies. Stuart moved to UCLAN as a Reader, in 1999 and taught a range of courses: Jurisprudence, Law of Obligations and the LL.M in European Public Law, he developed the exchange link with The University of Poitiers where he taught bi-annually in Law and Communications.

Dina Townsend, PhD Candidate Oslo University. Dina is a PhD Fellow in the Department of Public and International Law. Her research focuses on the concept of human dignity in the context of environmental law and governance. Dina completed her Bachelor of Laws at the University of Cape Town, South Africa, and her Master of Laws, with honours, at the University of Auckland, New Zealand. Dina previously worked as a Senior Attorney at the Centre for Environmental Rights (cer.org.za) where she led the Mining Programme and the Transparency Programme. As a result of work at the Centre, Dina was included in the 2013 list of 200 Young South Africans published by the Mail and Guardian. Dina has also worked in the Mining and Natural Resources team at Webber Wentzel, a South African law firm.

Zhang Tu, PhD Candidate Leiden Law School Zhang Tu (1987) received her LL.M. in Jurisprudence in 2013 at China University of Political Science and Law (CUPL). She joined the department of Jurisprudence in September 2013 and is currently writing her dissertation about Moral Secularism supervised by prof. dr. Paul Cliteur.

Floris van den Berg, Director of the Center for Inquiry Low Countries; board member of the freethought association De Vrije Gedachte a Dutch philosopher, director of the secular humanist thinktank Center for Inquiry Low Countries and board member of the freethought association De Vrije Gedachte. Van den Berg writes about secularism, atheism, animal ethics, environmental philosophy, human rights and education.

Prof Makoto Usami, Makoto Usami is Professor of Philosophy and Public Policy and Warden of Sansai Gakurin in the Graduate School of Global Environmental Studies, Kyoto University, Japan. Before joining the faculty at Kyoto, he has been Professor of Law and Philosophy at the Tokyo Institute of Technology (2008–2013), Professor of Jurisprudence at Chukyo University (2002–2004), and a visiting scholar at Harvard University (1997–1999). He has taught or lectured at several leading professional and graduate schools in Japan, including the Graduate School of Public Policy at the University of Tokyo, Nagoya University Law School, Keio Law School, the Graduate School of Economics and the Graduate School of Political Science at Waseda University, Doshisha Law School, and the Graduate School of Policy and Management at Doshisha University.

Bert van den Brink (Utrecht) is professor of political and social philosophy and vice dean of the Faculty of Humanities at Utrecht University. His publications include Recognition and Power: Axel Honneth and the Tradition of Critical Social Thought (co- edited with David Owen, Cambridge UP 2007) and ‘Recognition, Pluralism and

11 the Expectation of Harmony: Against the Ideal of an Ethical Life Free from Pain’, in Danielle Petherbridge (ed.), Axel Honneth: Critical Essays (Brill 2011).

Janneke Vink PhD Candidate, Department of Jurisprudence Leiden. Janneke (1990) received her LL.M. in Criminal Law & Procedure and in Jurisprudence and Philosophy of Law (cum laude) in 2013 at Leiden University. She is now a PhD candidate at the department of Jurisprudence of Leiden Law School, where she also teaches legal theory. Her dissertation is about the position of animals in liberal democracy and the importance of liberal theory in protecting the fundamental interests of animals.

Kerri Woods (Leeds) is Lecturer in Political Theory, specialising in contemporary political philosophy. She has written about human rights theory, the idea of cosmopolitan friendship, solidarity, vulnerability, environmental justice and global justice. She is a member of the Global Network for the Study of Human Rights and the Environment, and Treasurer of the Association for Legal and Social Philosophy. Prior to coming to Leeds she held a Teaching Fellowship and British Academy Postdoctoral Fellowship at the University of York. She was awarded her PhD from the University of Glasgow. Her recent work has been on cosmopolitan accounts of obligations to ‘distant others’ and the role of sentiment in the motivation and justification of such obligations.

Carla Zoethout (Amsterdam) is associate professor of Comparative Constitutional Law, Faculty of Law, University of Amsterdam. Previously she was lecturer at Erasmus University Rotterdam and Leiden University. Her main topics of interest are: constitutional law and constitutional theory in comparative perspective, human rights (in particular the freedom of religion). Recent publications include 'Margin of Appreciation, Violation and (In)Compatibility, Why the ECtHR Might Consider Using an Alternative Mode of Adjudication', European Public Law, May 2014, p. 309-330 and 'Animals as Sentient Beings. On Animal Welfare, Public Morality and Ritual Slaughter', ICL Journal, 2013, Vol. 7 (3), p. 308-327.

12 Speakers: Abstracts

Gerhard Bos Human rights for the long-term What ways are there for identifying long-term responsibilities in the context of human rights? The question is not, what options we have to ‘green’ human rights or to make human rights compatible with sustainability. The question is about any implicit entailment of long-term responsibilities in human rights. Focusing on the conceptual underpinnings of human rights, rather than on its complex institutional and practical nature, I will identify four starting points for answering this question as a matter of logic. For the purpose of this presentation, I will be assuming human rights are entitlements to certain things attributable to any human being, which states should respect. From this we can distill four starting points for identifying long-term responsibilities. We could identify long-term responsibilities in relation to certain object of human rights (e.g., the right to marry, right to recognition and equality before law), to the subject of human rights (i.e., persons as such, no discrimination between present and future, and e.g. children or groups), to the normative image of man underlying human rights (recognition of human dignity) and to the spatiotemporal and institutional conditions of respect. I will introduce each of these starting points highlighting for each aspects with the potential of including responsibilities that concern the – short and long term – future.

Antoine Buyse Human Dignity in Practice - The Case-Law of Human Rights Courts

Paul Cliteur The Future of Human Rights and Freedom of Speech in Particular The central assumption of this abstract for the workshop “The Future of Human Rights: Foundations, Norms and Institutions” is that the limits of free speech are, to an increasing extent, not established by the legislature or the judiciary, but by terrorist organizations and terrorist individuals. At least, this is the case with regard to a particular kind of speech: religious criticism or religious satire.

Freedom of speech is nowadays “freedom of speech in an age of theoterrorism”.1 This means that freedom of speech is accompanied with many factual constraints which are real limits on the free speech for the persons concerned, those targeted by terrorist assault, although the general public seems ignorant, many politicians included.

In a study of six major cases, the Carrell Affair, the Cartoon Affair, the Rushdie Affair, the Terry Jones Affair (better known as the Koran-burning pastor), and the Youssef Affair (better known as the creator of the Innocence of Muslims video), and the early discussion on the film The Stoning of Soraya M., I hope to clarify the predicament our civil rights seem to be in. I also hope to shed some light on the future

1 The term “theoterrorism” is used for terrorism which finds its source and justification in a conception of God. We cannot, within the context of this contribution, explain and justify why we think this is useful vocabulary and have to refer to: Cliteur, Paul, “The Challenge of Theoterrorism”, in: The New English Review, 30 May 2013, full text: http://www.newenglishreview.org/Paul_Cliteur/The_Challenge_of_Theoterrorism/.

13 of human rights, assessing the different approaches governments of nation-states can adopt in addressing this problem.

Rowan Cruft Rights Theory and Human Rights I will examine the relationship between two theses: 1. We should conceive human rights in Wesley Hohfeld's terms as not simply implying duties for states (and, perhaps, others) but as in some sense constituted by such duties. 2. We should conceive human rights as distinctive partly because they are justified primarily by what they do for the individual right-holder - unlike many other rights which are justified by what they do for the wider common good, I think both theses are correct, but there are interesting tensions between them: Buchanan and Sreenivasan have recently noted that, for example, a state's duty to set up a vaccination programme to deliver herd immunity cannot be justified by what it does simply for an individual beneficiary. If - as the first thesis tells us - this duty in some sense constitutes (part of) the human right to health, that right appears to be justifiable only by what it does for its beneficiaries taken in aggregate rather than individually, contra the second thesis.

I will defend both the theses listed: I highlight the benefits of the Hohfeldian approach as the best way to distinguish human rights from goals and values, and I critically develop recent work by Besson, Tasioulas and Vayena to outline ways in which we can think of Hohfeldian human rights and their correlative duties as justified by what they do for the individual right-holder.

Catherine Dupré Understanding Human Rights’ Future: How Human Rights Should Change This paper argues that crucial for the future of human rights is a greater theoretical awareness of how human rights have shaped the time of democracy and of humanity, as well as a greater understanding of ways in which human rights can continue to do so. The post-war theoretical and political foundations of human rights rests in the so- called never again commitment made by the drafters of European post-war constitutions, and of human rights instruments such as the European Convention on Human Rights. While this foundational pledge has arguably significantly shaped the time of democracy, by establishing clear boundaries between the past and the present (constructed as a negative past), the wider temporal implications of human rights are often overlooked and less well understood. This paper argues that central to the construction of human rights is the concept of human dignity and it will discuss three key issues. The first is perhaps the most familiar in that the paper suggests that human dignity as the foundation of human rights, particularly since the end of the Second World War, carries with it the memory of inhuman times. The second issue is increasingly relevant in the thinking about human rights and their actual protection: dignity, it is argued, is about synchrony, namely the process of ‘thinking together’ the different temporalities of humanity and the different types of human rights. The third issue discussed in the paper regards the possibility of a future for human rights, and the paper argues that founding human rights in human dignity makes it possible for the future to unfold towards an enhanced quality of human rights protection.

14 Lynn Hunt The History of Human Dignity In the international articulation of human rights since 1945, “human dignity” has gained increasing prominence. Where does this notion of human dignity as the foundation of rights come from? There seem to be two major schools of thought on this historical or genealogical question that mirror, not coincidentally, the schools of thought about human rights: the first emphasizes its long-term origins usually in the Western tradition going back to Greco-Roman Antiquity but also including references to Islam, Hinduism, Buddhism and Confucianism; the second considers the notion distinctively “modern.” Within this second line of argument, human dignity is traced by some scholars to the 18th century, especially Immanuel Kant’s philosophical formulation of it, while others consider the post-World War II era the true beginning. In other words, some scholars think that human dignity was conceptualized in a new way after World War II, which is why it appears in the UN documents and not, for instance, in the French Declaration of the Rights of Man and Citizen of 1789. A considering of the history of human dignity as a concept and a set of cultural practices gives some context to current day debates over human dignity (and human rights).

Matthias Mahlmann Human Dignity as the Foundation of Human Rights The concept of human dignity plays in various human rights catalogues of international and national constitutional law a foundational role for human rights in general. This legal function is mirrored in philosophical and theoretical debates on the relation of dignity and rights. That human dignity, however, in fact does play such a role is far from clear. The talk will explore this question by considering the current legal understanding of human dignity in comparative perspective and by exploring the philosophical discussions of this matter. It will be argued, that an answer to this question is central for any convincing theory of human rights and the principled practice of law.

Christopher McCrudden To what extent are philosophical and legal accounts of human rights practice independent? There is no single philosophical or legal account of human rights. I begin, therefore, by distinguishing between several various current accounts. There are two common ways of thinking about how best to describe the relationship between human rights and its ethical foundations. The first is top down. This involves attempting to identify one or more meta principles that are said to underpin the idea of human rights, such as human dignity and then deriving the details of what rights are properly called human rights from this. The effect of this is that the process of deriving what is appropriate human rights practice becomes a critique of current practice, where some rights and some processes are seen as Inappropriately termed human rights because they cannot be derived from the preferred meta principle. The limitations on this approach are considerable, not least the fact that the resulting recommendations as to what human rights practice should consist of may have little or nothing in common with human rights as actually practiced today. It does not purport to.

The alternative approach is bottom up. This involves attempting to to identify one or more meta principles that can be derived from the practice of human rights. In other

15 words, we attempt to understand the practice of human rights. From our assessment of this practice, we then come up with the best justification for this practice. What is attempted, then, is an immanent critique of the practice which results in the identification of the best normative explanation for this practice. For example, we may say that the best normative justification is that human rights are those rights the breach of which are seen to justify international intervention in the state that is in breach.

The fatal flaw in the best examples of this approach is the extent to which the human rights practice that is identified is extraordinarily impoverished. First, it ignores the contribution of constitutional and other domestic level developments almost entirely. Second, it ignores the judicial interpretation of human rights, both national and international. Third, it takes a narrow approach to the institutions that are involved in the human rights enterprise. In particular, it leaves significantly out of account the role played by civil society in the construction of the understanding we have of the normativity of human rights. All those who claim to be 'doing' human rights should, therefore, potentially at least, be in the frame of reference for identifying what human rights practice consists of. This would, for example, include religious, as well as secular sources, of human rights practice.

Aside from problems in identifying the scope of what should be included in human rights practice, there is a significant additional methodological difficulty. This is the problem of choosing the starting point for one's identification of human rights practice in the first place. A bottom up approach seems to assume some initial conceptual idea of human rights in order to be able to identify the practice, from which one derives the normative underpinnings. But doesn't the initial starting point smuggle in some normative understanding of human rights, and doesn't that result in a circular process? I suggest that a better understanding of human rights is one that transcends the dichotomies of current practice dependent and practice independent approaches, and I propose an alternative approach.

Essentially, what I shall be arguing is that both practice independent and practice dependent approach need to be significantly modified from their currently most influential versions. A practice dependent approach, properly undertaken, reveals that for several of human rights actors, human rights is best understood in top down form, and therefore this approach, paradoxically, becomes an element of human rights practice. Two meta principles seem to emerge as strong contenders for being the underpinning normative meta principles that currently operate. The first is pluralism. And the second is human dignity. The fact that they are both in play means that the conception of human dignity that operates is fundamental but thin. It is fundamental because it not only provides a convincing starting point, but also it also provides an important limit on what might otherwise have been a worryingly relativistic account. It is thin because our ontological understanding of what it means to be human is a continuing process. Most significantly, my revised approach supports a dialogic understanding of the normativity of human rights. The most convincing account is that philosophical and legal accounts of human rights practice are both dependent and independent of each other.

16 Jos Philips Human Rights and Claims of Future People: Four Complications Many authors agree that human rights will have to be able to include claims of future generations if they are to remain relevant. However, incorporating future people in human rights raises many complications over and beyond such classical problems as those of non-existence and non-identity. I will, while concentrating on a philosophical conception of human rights, be concerned with outlining –rather than starting to solve– four such complications. The first is that we need defensible assumptions about the number, whereabouts and interests of future people. The second concerns the question, given the uncertainties concerning how we can affect the interests of future people (by emitting or not emitting etc.), of just when their interests generate human rights claims. The third is how appropriately to set priorities when, by including future people, even many more claims than heretofore become matters of human rights. And the fourth complication –which I will discuss only briefly– is how to make sure that human rights claims which regard future people have appropriate motivational force. This may, as testified by the current difficulties besetting climate negotiations, be particularly difficult to achieve. My discussion of these four problems does not aim at completeness in any sense but merely seeks to contribute to mapping out the relevant problems.

Elena Pribytkova Protection of the Right to a Decent Social Minimum Through the Judicial Activism of the European Court of Human Rights My paper focuses on the right to a decent social minimum, which includes a set of guarantees aimed at protecting persons from extreme poverty; enabling their involvement in society and access to shared material and intellectual values; and, in the final analysis, providing the opportunity for their moral and intellectual flourishing. Modern literature and international human rights law proceed from the assertion that the right to a decent social minimum is inextricably connected to, and presupposed by, the right to life, and acts as a guarantee of its effectiveness. At the same time, there is a widely held point of view that it is not a ‘right’ in the strict sense because a person cannot demand its fulfillment from the state. A recipient of social assistance is not a subject of rights but the object of the self-obligation of the welfare state. That is why second-generation human rights, which constitute a composite human right to a decent social minimum (the right to adequate food, water, sanitation, housing, clothing, health care, prevention and control of disease etc.), still represent one of the most unfulfilled categories of human rights.

I intend to analyze the practice of the European Court of Human Rights, which gives judicial protection to some components of the right to a decent social minimum while, in compliance with an integrated approach, addressing civil and political rights, such as the right to a fair trial or the right to freedom from torture and inhuman or degrading treatment or punishment (for example, Pronina v. Ukraine, Peers v. Greece). Special attention will be paid to judgments on lawsuits against Russia concerning its failure to pay social allowances; child and Chernobyl-related benefits; inhuman and degrading conditions of detention etc. The case law of the European Court of Human Rights will be compared with the practice of other international, regional and national courts and supervisory bodies (in particular, with the case law of the European Court of Justice, the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights). I will emphasize a practical

17 significance of the judicialization of the right to a decent social minimum and at the same time will show a tragic insufficiency of the approach, according to which the failure of the state to guarantee a secure access to a decent social minimum is considered to be a human rights violation only if it simultaneously constitutes a threat to the right to life or any other civil or political right.

Stuart Toddington Dignity, Property and Rights: Towards an Ecumenical Perspective The idea of property is so central and fundamental to our understanding of history and society that the various accounts of property rights that have emerged serve effectively to define and differentiate our most influential schools of sociological, economic, political and moral theory: Hobbes, Locke and Marx are dramatic examples.

There is much that is intuitive and helpful in the concept of property, not least the prospect of synthesising notions of ‘natural’ and universal justifications for the appropriation of what is indispensable to our subsistence.

The idea of ‘self-evident’ or ‘natural’ property rights are crucial to our most influential constitutional models, not least the social contract model that would appear to have the most contemporary resonance with market liberalism and the values of individualism, namely, that originated by John Locke. But the kind of rights which takes shape from Lockean (and Hobbesian) notions of individual property rights, and the kind of constitutional relations (between individuals and the state and individuals and the collective) that arise from them, have been the focus of much recent criticism.

The subjects (the bearers) of these individual property rights have been characterised as ‘atomistic’, ‘isolated’ egos implicated in ‘attritional’ relations with other ‘atomistic’ egos constitutionally subservient to sovereign public power. The rationale of liberty thus resides in a contract to maintain these attritional property relations.

This state of affairs appears to be the inevitable result of the ‘contract’ between state and society mediated by the ‘monological’ subject. Both the idea of a ‘social contract’ and of the Kantian’ ‘transcendental’ subject are the focus of vehement ‘dialogical’ critique in Hegel’s Philosophy of Right. Predictably, Kant’s political theory and the idea of the Categorical Imperative grounded in the self-validating rationality of the isolated subject are at the forefront of the Hegelian objections.

But there are some very odd twists and turns in the way this well-known disagreement has developed and in the way in which the relationship between on the one hand, liberal conceptions of property and individual dignity, and on the other, between Kantian and Hegelian conceptions of the phenomenology of the constitutional subject are today received.

To begin with, Hegel appears not only to employ precisely the same conception of fundamental property rights that we see in Locke, but commends to us Kant’s point of departure – the unconditioned will - as the greatest advance in the history of moral theory.

18 When we put these issues under the magnifying glass we find that the momentum provided by our intuitive receptions of immediate justifications for property rights become transformed into a much more abstract - and much more ecumenical - philosophy of agency and agent rights and duties.

When we examine the similarities between Locke and Hegel’s conception of property, and when we pursue Kant’s crucial question as to whether a property right is a relation between a person and a thing or between a person and other persons; we begin to see the antagonisms between the monological and the dialogical disappear.

Ultimately, I argue, we can assimilate the allegedly dialogical idea of Hegelian ‘mutual recognition’ to the Kantian notion of a Categorical Imperative, and in turn to the Gewirthian model of the mutuality of agent rights as expressed in the Principle of Generic Consistency.

Kerri Woods Human Dignity, Vulnerability and Human Rights Human dignity is widely understood to be foundational for human rights. Human beings have a moral property which can be described as, or exemplified in, an inherent dignity, which is a moral property that gives rise to the moral demand that any and all human beings ought not to be treated in ways that threaten or are disrespectful to this quality. Explaining what exactly human dignity is, or what it consists in, is a difficult enterprise, but the most promising attempts rely in whole or in part on a Kantian account that understands human dignity to lie in the unique human capacity for rationality, which gives to humans their capacity for both autonomy and morality.

There are, however, human beings who do not have what might be regarded as a fully human capacity for morality, which has prompted a literature on what has been called ‘marginal cases’ (Feinberg 1974; Singer 1980). What this literature reveals is that the grounding of human rights in the concept of human dignity understood in Kantian terms has difficulty explaining why such people should have rights. One might simply conclude that they do not, but such a claim would be very contentious. Indeed, the persistence of widely held intuitions regarding the status of humans as rights-bearers, independent of their functional autonomy, gives us reason to look again at the fit with our moral reasoning. The challenge here is to defend an account of human dignity that is neither over- nor under-inclusive, and that does not collapse into speciesism.

An alternative approach to theorising human dignity, and one that has some support from analyses of recent European case law, takes its cue from the ‘vulnerability thesis’ (Fineman et al 2013). This approach rejects the centrality of the Kantian tradition for understanding the uniquely human moral property that calls forth a normative response most often articulated in terms of rights. In this paper I assess the promise of the vulnerability thesis for dealing with the so-called marginal cases problem. While I argue that the vulnerability thesis can help to capture and explain widely held intuitions about human beings who have rights but lack autonomy, I conclude that this approach, if invoked as a justification of human rights for humans, does not have a more satisfactory answer to the charge of speciesism than do the alternatives it critiques.

19 Panels: Abstracts PANEL 1 Theory and Method

Dr. Mahmoud Bassiouni, Wissenschaftlicher Mitarbeiter, Goethe-Universität Frankfurt Human Rights as Social Constructions The presentation will focus on the topic of human rights justification and will argue that human rights can be plausibly apprehended both in terms of their function as well as their content only when we conceive them as socially constructed institutions that seek to defend human beings from specific threats that have occurred or may occur in society. In contrast to the idea that human rights can simply be deduced from any moral principles, I would like to demonstrate that human rights symbolize dynamic normative reactions to certain practices and experiences and accordingly are subject to constant change. I argue that this approach not only allows to clarify the evolutionary character of human rights but also enables us to understand and trace the formation of already existing human rights.

Daniel Bedford, Lecturer in Law, University of Portsmouth Constructing Human Dignity: Methodological Assumptions and the Creation of Concepts The aim of this paper is to explore background methodological assumptions that inform our understanding of the significance and role of the concept of human dignity. It claims that the perceived limitations of dignity, as a legal and ethical concept, are related to different methodological assumptions that sometimes remain unexamined. These are assumptions about the nature of time, thought and being. The author contends that some existing methods of conceptual analysis are caught up with seeking to accurately discover the shared content of the concept of dignity, which has proven difficult and has invariably led to claims that the concept is vacuous. In this light, the paper proposes that dignity be approached from a different, constructivist method of conceptual analysis, which was initially developed by Gilles Deleuze. The author argues that such a method would take the current debate on the meaning of the concept in a more fruitful and productive direction. In this regard, the paper seeks to shift the focus of analysis away from the formal search for a shared concept that is simply there to be applied, in favour of constructing the meaning of the concept to respond to the shifting problems that emerge in life, as well as to unlock new pathways to promote more dynamic, rich, active and joyful modes of living. In this respect, the author argues that the meaning and value of the concept of dignity should not be assessed by how well it reflects the past, but how it can be constructed to produce change that unlocks new potentialities and creative tendencies, acting on the present arrangements to improve the future for the marginalised, disempowered and disadvantaged.

Dr. Hubert Schnüriger, Wissenschaftlicher Assistent, Universität Basel Human rights as Rights Debates on human rights cover a broad range of topics. Some of these debates are quite specific in character and it often doesn’t seem necessary to go back to the most fundamental questions concerning human rights in order to highlight the relevant topics. Even more, it often may be unhelpful to conflate quite specific topics with more fundamental ones. However, the opposite may be true too. Debates on specific topics often remain at best piecemeal if not futile when detached from more basic

20 topics. On principle, human rights only keep their critical force and only have a future if they stand on a firm ground that highlights their particular role in practical reasoning. In order to understand this role it is crucial to take seriously that they are rights. This, at least, is the basic assumption of the talk. Hence, it is of utmost importance for defenders of human rights to have a clear idea of the concept of rights.

The talk introduces what can be called a ‘status conception of rights’. According to this conception, rights-talk reveals a specific structure of justification. In the case of claim-rights, on which the talk concentrates, the correlative duties are justified for the sake of the right-holder. Hence, the right-holder is supposed to have a particular status in practical reasoning. It is the status of a being that counts morally on its own. This concept of rights can solve a longstanding debate about the identification of right- holders in difficult legal and moral contexts. It has its place in the context of moral as well as legal reasoning, as will be shown.

Taking seriously that human rights are rights helps to give most of the debates on human rights a clearer shape. It even reveals that some of them rest on highly implausible presumptions. As an example, it will be shown that the widespread refusal of the conceptual possibility of pre-institutional positive human rights like the right not to live in poverty rests on a misguided understanding of the role of rights in practical reasoning. However, the proposed approach remains agnostic towards most of the debates on human rights. It is, e. g., neutral as to the question if human rights may just be understood as universal and general moral rights, rights of every human being against every (other) moral agent, or if they should be understood in a more specific way. The important point is that human rights share the justificatory structure of rights in general. According to this approach, debates about a political or philosophical conception of human rights or about an institutional or interactional understanding of human rights have the same focal point as they reveal the same basic justificatory structure. This, in turn, allows not only to base the debate on human rights on a plausible conceptual basis but also to reveal the common substantial ground of the different approaches in the debate on human rights. That way, it forms the basis of a coherent and encompassing struggle for the realization of the aims all supporters of human rights share. The talk will substantiate this claim in detail.

21 PANEL 2 Recognition and Identity

Tom Herrenberg, PhD Candidate Leiden Law School Human Rights between Assimilationism, Pluralism, and Individualism In an insightful article on the history of the American blasphemy law, constitutional scholar Robert Post identified three options for a state to manage the diversity of its citizenry, options he calls: ‘assimilationism’, ‘pluralism’, and ‘individualism’. 2 ‘Assimilationist law’, Post argues, ‘places the force of the state behind the cultural perspective of a particular, dominant group’.3 Pluralist law seeks to ‘foster a regime in which diverse groups can escape from such domination and maintain their distinctive values’4, while ‘law based on the value of individualism focuses instead on the protection of individuals vis-á-vis groups.’5

In the Western world, ‘human rights’ are commonly regarded as the rights listed in documents drafted shortly after the Second World War, such as the Universal Declaration on Human Rights (1948), the European Convention on Human Rights (1950), and the International Covenant on Civil and Political Rights (1966). Yet, over the last decades another influential discourse has jumped to the front of international human rights law. The main sponsor of this type of human rights, which we might call religious human rights, is the bloc known as the Organisation for Islamic Cooperation (OIC). These human rights follow a fundamentally different logic. Whereas the ideological foundation of the Universal Declaration on Human Rights and the European Convention on Human Rights can be labelled as ‘individualistic’, the second type of human rights tends to be largely assimilationist. Compare, for example, the rights to freedom of expression and freedom of religion mentioned in the UDHR with the Cairo Declaration on Human Rights in Islam (CDHRI, 1990), which was drafted by the OIC. Article 18 of the UDHR declares that ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’, whereas article 10 CDHRI reads: ‘Islam is the religion of true unspoiled nature. It is prohibited to exercise any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism’. A division also emerges with regard to freedom of expression. While the Human Rights Committee in its latest General Comment argued that ‘Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the [International] Covenant [on Civil and Political Rights]’6, the CDHRI only allows freedom of expression insofar it does not conflict with Sharia’h law, 7 thereby overriding, for example, the right to freedom of expression of the dissenting non-believer.

Although the concept of human rights is not an ‘empty shell’, we can safely say that, due to a ‘religious revival’8, it has become somewhat muddled over the years. What I would like to do with the article is to address the human right to freedom of expression and – since the two are closely related to each other – the right to freedom of religion in light of the framework sketched by Robert Post and, more in general,

2 R.C. Post, ‘Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment’, California Law Review, vol. 76, 1988, p. 297-335. 3 Ibid., p. 299. 4 Ibid. 5 Ibid., p. 303. 6 Human Rights Committee, ‘General comment No. 34’ (2011) UN Doc. CCPR/C/GC/34, § 48. 7 Article 22 (a) CDHRI. 8 S. Mancini & M. Rosenfeld, Constitutional Secularism in an Age of Religious Revival, Oxford University Press, 2014.

22 against the background of liberal philosophy. Apart from discussing freedom of expression at the level of the United Nations, a large part of the article will also be ‘faced inwards’ by critically discussing the way the European Court of Human Rights deals with blasphemous utterances. In my opinion, the Court’s approach, as embodied in its decisions in Otto-Preminger-Institut v. Austria (1994) and I.A. v. Turkey (2005), steers away from the regime of human rights law as favoured by the United Nations, and is in tension with the ideals of secular democracy (not without cause, the case of I.A. v. Turkey inspired three judges to write a vivid joint dissenting opinion). I would argue that the meaning of human rights in the future will partially be determined by the outcome of the ideological debate – not a ‘clash’ – between the values of assimilationism, pluralism, and individualism.

Prof. Dr. Markus Rothhaar, Katholische Universität Eichstätt-Ingolstadt Fichte’s Principle of Recognition as a Foundation of Human Rights In my presentation I want to show that so called „theories of recognition“, as they have been developed in German Idealism, especially by Johann Gottlieb Fichte and Georg Wilhelm Friedrich Hegel are well suited to provide a philosophical foundation of human rights. Furthermore I want to show that by recurring to this type of theory, it is possible to bridge the gap between „political“ or „functional“ und „foundational“ concepts of human rights. In order to do so I will first outline Fichte’s theory of mutual recognition as it can be found in his „Grundlagen des Naturrechts nach Prinzipien der Wissenschaftslehre“ („Foundation of Natural Right“). Then I will briefly try to show, that Fichte’s theory of rights avoids most of the problems that arise in contemporary philosophical approaches to human rights.

Fichte’s theory of law departs from the insight that “to exist as an individual person” means “to exist as an individual, finite self-consciousness”. Since self-consciousness involves a reflective process of self-determination, individual and finite subject can only constitute itself as a subject (i.e. come into being at all) by conceiving itself as free. Fichte’s transcendental analysis of the concept of “finite subjectivity” then shows, that a finite subject can conceive itself as free only by means of an “invitation” to freedom (“Aufforderung”) made by another free subject. The reason for this is that the formation of self-consciousness requires to be free in a practical sense and at the same time to theoretically think one’s own freedom as an object. This, however, is only possible after a person has already constituted itself as a self-conscious being. In order to be able to constitute itself as a subject, any subject A must therefore be conceptualized and addressed as free by another person B beforehand. In order to do so, B must already be a self-conscious subject, because only such a free subject is able to voluntarily give up a part of his freedom by “inviting” someone else to exercise freedom. If, however, the “invitation to freedom” can only have been performed by another free subject, the consciousness of myself as a free, yet finite subject implies the not only the consciousness that there are other free, yet finite subjects, but also the understanding that other people’s freedom is the condition for my own freedom. Hence, anybody who would not be willing to limit his own freedom with regard to the freedom of all others would revoke the very condition of being a free subject itself.

The insight into the fact that one’s own individual subjectivity requires a plurality of free subjects therefore transforms into the normative claim to an equal distribution of limited spheres of freedom among all finite subjects. This normative claim can be called the principle of recognition as “Rechtssubjekt”, i.e. as bearers of individual

23 rights. To recognize a person as “Rechtssubjekt” means to recognize her as a being that can claim from each other person to concede her an exclusive, yet limited sphere of freedom. Since, however, not everybody will automatically respect the freedom of all others, the individual normative claim to recognize everybody else as a bearer of rights, necessarily implies a normative claim to establish institutions which are able to guarantee every person the rights deriving from the principle of recognition.

Against this background, it is evident that Fichte’s theory of human rights does not fall in any of the contemporary “standard categories” of human rights theories, as developed for example by Beitz and others. It is not a “naturalistic theory”, because it does not refer to values, needs, interests etc. It is not an “agreement theory”, because the normative claims deriving from the principle of recognition exist before any agreement is made and form rather the “condition of the possibility” to make agreements at all. And it is neither a merely “political theory”, since it gives a strictly normative foundation of right. This foundation, however, also implies a duty to establish institutions and political orders that are able to guarantee and enforce the individual rights based on the principle of mutual recognition. Fichte’s theory of recognition therefore seems to open up a perspective to reconcile “political” and “foundational” theories of human rights.

Zhang Tu, PhD Candidate Leiden Law School Is A Right to Identity A Fundamental Human Right? Despite the fact that none of the international human rights codification contains a right to identity, the Inter-American Court of Human Rights has verified such an unwritten right. Will this be a beginning of codifying such a right? Is it a newly discovered human right or a civil right? Is there really a need to develop a new human right in order to protect identity?

Seldom has anyone brought the philosophical significance of identity to the frontline of political philosophy so vividly as Charles Taylor has done in his essay “The Politics of Recognition”. Taylor criticizes what he sees as liberalism’s inability to accommodate the politics of difference resulting from identity, and he predicts rigid liberalism will rapidly become impractical in the future world. At the same time he endorses a multiculturalist political model which includes more than one cultural community. Although Taylor does not explicitly elucidate whether there is a right to identity and what type of right that is, it still can be inferred that he would agree there should indeed be such a right to identity. And he would opt for treating such a right as a fundamental human right.

This article shares the understanding with Taylor on the significance of identity in both ethical life and politics, also on the fact that identity has not received due recognition and respect under some regimes. However it departs from him regarding whether there is a fundamental human right to identity. My central claim is, that while it is possible to grant a civil right to legally confirm the value of identities, a right to identity is not the same thing as a fundamental human right, namely a right to life, liberty, or property which arises simply by virtue of being a human being. I aim to support my claim by displaying a hidden assumption in Taylor’s and other multicultural arguments, from precisely which I depart. When Taylor calls for the continuing preservation and appreciation of the politics of difference resulting from modern notions of identity, he takes the distinctness of identity and the according

24 politics of difference as an important political virtue. However, I will argue that either personal identity or the politics of difference is a social or institutional fact. It is therefore a choice of governments or international judicial bodies to balance and decide whether and to what extent we should foster multiculturalism, and grant any right to cultural or communal identity.

25 PANEL 3 First Principles

Timothy W. Allen, Department of Philosophy, University of Cincinnati Disability and the Social Contract Social Contract Theory is, by most anyone’s reckoning, the single most important political theory underlying modern western democratic societies. Although outlined specifically by Plato, and alluded to by Aristotle, Social Contract Theory really came into its own in the Renaissance and Enlightenment periods, hand in hand with the modern scientific world view. In its classic form, one of its most salient features is that individuals are motivated to enter into the compact solely from self-interest.

This view is essential to Social Contract theory in its classical formulation as preceding, and forming the foundation for, the value theoretic positions forming the basis for both ethics and political philosophy. Hobbes is explicit in this regard: justice and injustice are the fundamental concepts, other value terms are defined in terms of them, and they themselves defined in terms of abiding by or breaching the mutual non-aggression agreement. This view has given many utilitarian, Aristotelean, and Kantian ethicists qualms, but they have reached a generally accepted rapport, agreeing that though each of these widely accepted approaches to ethics has its strong and weak points, each can, with some degree of acceptability, deal with the recognized ethical problems facing people living in modern societies.

This may be largely true, but social contract theory is decidedly ill equipped to address ethical and political concerns of individuals with disabilities. In order for a social contract theory to be viable, certain initial conditions must be met. Entering into the contract must be genuinely choiceworthy for all of the participants. The crucial factor here is that they all must be equal, else each won’t see entering into the arrangement as advantageous for him or her. This is why all of the primary advocates of social contract theory -- Hobbes, Locke, Rousseau, and Rawls – are at great pains to specify that at least approximate equality of all the parties is a key feature of the original condition. This is the only way of insuring the arrangement is a good bargain for each individual.

This feature of social contract theory has the effect of leaving individuals with disabilities in a kind of limbo. For the contract to be an attractive bargain for those entering into it, they must be excluded from the original position, and their special situation accommodated only later by means of some theoretic artifice. Most individuals with disabilities find this prospect demeaning, and view social contract theory with suspicion because of it.

This paper argues that the case need not be thus, and undertakes an interpretation of the key features of the theory that allows for accommodating individuals with disabilities in the original position, while making entry into the contract choiceworthy for all. To this end, it examines Rawls attempts at resolving this issue, and incorporates recent avenues of analysis suggested by Iris Young, and especially Lu Hong and Scott Page.

Dascha During, PhD Candidate Utrecht University

26

PANEL 4 Applications and Praxis

Floris van den Berg & Janneke Vink Human Rights are Animal Rights In our contribution to the conference The Future of Human Rights: Foundations, Norms and Institutions we would like to approach human rights as part of a wider concept of fundamental rights. To date, fundamental rights, such as rights to life, bodily liberty and equality rights, are exclusively distributed among human animals. Modern biology, genetics and ethics, however, give us compelling reasons to consider also granting these important rights to other smart and/or sentient animals, such as apes, dolphins and pigs.9 Consequently, human rights could be part of a broader concept of fundamental animal rights. Human rights would then be a subcategory of animal rights.

Fundamental rights are important to persons who cannot defend themselves in the society in which they live. Political leaders, powerful white men and very rich people probably do just as well with fundamental rights as they would do without them. Children, disabled people, homosexuals, and other minorities, however, often require fundamental rights to avoid oppression. Most nonhuman animals are also a group that is oppressed by the people in power. This is why they too would and should enjoy the much needed protection of fundamental rights. Although they cannot enforce their rights on their own, just like children and disabled people, they have certain instinctive needs, such as bodily liberty, that deserve protection. In this regard, it is helpful to distinguish between moral agents (those who are in power) and moral patients (all sentient beings who are affected by policies made by moral agents).10 Moral agents can speak out in favor of protecting the interests of moral patients, as parents do for their children. Another example of this representation is the Dutch Party for the Animals, which gives a political voice to voiceless nonhuman animals (moral patients).11

In our contribution to the conference, we focus on the need to establish fundamental rights for animals of other species. We will argue that the principle of equality – ironically, strongly defended in all human rights documents –12 requires a fair weighing of all interests, setting aside all irrelevant differences between beings. Some nonhuman animals can suffer from violence and confinement just as much as humans, so the difference in species should be ignored when distributing protection against it in a fair way. Ultimately, human rights should be joined by other species rights under the broader title of fundamental rights.

Jamaseb Soltani, PhD Candidate University Leiden Organizing the freedom of religion: two models, two outcomes This paper will discuss the freedom of religion in the face of challenges posed by multiculturalism and religious fundamentalism in Western Europe. How should governments address the question of religious freedom in a way that, on the one hand, ensures individual liberties, while on the other hand, advances the integration of

9 Singer, Peter, Animal Liberation, Harper Collins Publishers US, 2009 (1975); Regan, Tom, The Case for Animal Rights, University of California Press, Berkeley and Los Angeles, 2004 (1983); Rachels, James, Created from Animals. The Moral Implications of Darwinism, Oxford University Press, Oxford and New York, 1990; Waal, Frans de, The Bonobo and the Atheist: In Search of Humanism among the Primates, W.W. Norton & Company, New York, London 2013; Goodall, Jane, Reason against Hope: A Spiritual Journey, Thorsons, London 1999. 10 Regan, Tom, The Case for Animal Rights, University of California Press, Berkeley and Los Angeles, 2004 (1983). 11 http://www.partyfortheanimals.nl/. 12 For example: Article 14 of the ECHR, Section 1 of the Fourteenth Amendment of the American Constitution, Article 2 of the UDHR.

27 religious minorities? The paper will present a distinction between two models for the separation of church and state: the French laïcité [laicism] and European secularism. For too long have the two terms (wrongly) been standing as synonymous with each other and been misrepresented as solely a linguistic differentiation. I will present the case that these are, in reality, two different doctrines, developed in two fundamentally different traditions and that they assign the government with two different tasks in organizing the freedom of religion. By comparing the constitution and the larger political system of France with those of the Netherlands and Great Britain, this paper will claim that while ‘secularism’ guarantees the separation of church and state, laicism offers a clear-cut division between religion and politics altogether.

From there on, I will engage in a normative discussion and present reasons as to why the laicist doctrine is, in fact, more liberal, both for believers and non-believers, and how it guarantees the religious freedoms of both individuals and religious communities in a more just and durable fashion. By de-politicizing religion, laicism enhances the integration of religious minorities. In contrast, secularism politicizes religious identities and artificially maintains them, countering the process of integration.

Dina Townsend, PhD Candidate Oslo University Dignity’s space in human rights law and its environmental implications In a number of judgments, human rights courts have gestured towards a human right to space. It is sometimes seen as something geographic, something relational (between one and another), and sometimes something intangible and fluid – space as identity and process (Philippopoulos-Mihalopoulos, 2010). This right arises in relation to a diverse range of litigants (including tenants, prisoners, refugees, pregnant women, indigenous groups and children) and a diverse range of rights (water, property, housing, equality, sexual freedom, bodily integrity and so forth).

In this paper, I explore the concept of space as it emerges in human rights law from two related perspectives: Firstly, I look at the way in which courts relate space to human dignity (as a foundational right or value). I do this by examining the dignity and space discourse of courts in three human rights cases: one in refugee law (territory and international space), one in water law (private property and housing), and one in prison regulation (privacy and the body). I also analyse some recent statutory developments in the field of bio law (again, space and the body). I argue that law (mostly courts, but also legislators) uses the concept of dignity to interpret, organise, expand and reduce space. This paper reveals the ways in which courts (and legislators) use dignity in conservative and revolutionary ways in their reasoning. Courts use dignity to protect vested interests in property, territory and privacy. Courts also, however, use dignity to interpret and define space in novel ways that allow for the recognition of rights in previously exclusive spaces. Borrowing the idea of the ‘imaginary domain’ from Drucilla Cornell’s feminist theory, this paper analyses how courts use dignity to create and protect a space of self-articulation. (Cornell, 1995).

Secondly, I ask how the law can (and does) respond to environmental threats to dignity through the concept of space. Using the same cases, I explore the ways these different approaches (conservative and revolutionary) enable courts to respond to the spatially (and temporarily) complex threat to human rights that is environmental degradation.

28 PANEL 5 Society and Economy

Liesbeth Feikema, PhD Candidate Utrecht University

Nina van Egmond, PhD Candidate VU University Access rights to work Within the framework of human rights, the recognition of rights to access to work has lagged behind, not only in comparison to first generation rights, but with respect to other social and economic rights as well. Although the importance of work for both individual and society is widely recognized, there is no agreement about the value and function of work. In this paper, I aim to explore the meaning of work, and argue in favour of the enhancement of access rights to work, while taking into account consequentialist objections.

As to the fundamental value of work, the question is if work is primarily a means to make a living, or should be conceived more broadly as the ability to actively contribute to society, and thereby also to the worker’s sense of human dignity. Within Rawls’ minimalist account of human rights that includes the right to subsistence and to a minimum level of economic security, work is primarily understood as a means to human survival. This conception of work requires us to clarify why subsistence generated through labour is preferable above state support in the form of direct cash transfers.

If we, on the other hand, start from Nussbaum’s more substantial account of human capabilities and consider the right to work as an enabler of a range of other rights, including the gaining and maintaining of self-esteem as a prerequisite to human flourishing, we are confronted with the question whether all employment actually does generate such sense of dignity. Unproductive labour is generally treated with disdain. In The Human Condition, Hannah Arendt describes the activity of labour as ‘toil and trouble’. Arneson puts it like this; “Jobs at the bottom of the status hierarchy are badges of failure in a competitive society” (Arneson, 1990: 1132). Taking these positions into account, I will argue in favour of an account of work as an enabler to reciprocate. The principal of reciprocity, captured by Arendt in the faculty of promise making, is by both Arendt and Rawls considered to be at the basis of a cooperative or decent society.

As to the legal status of work, article 23 of the Universal Declaration of Human Rights assigns to people the right to work (access rights), the right to free choice of work (liberty rights), and the right to dignified work, including a non-discrimination clause and the right to join a trade union (equality rights). However, when negotiations started to turn these moral claims into legal entitlements, access right to work were the first to be abandoned. Political considerations and capitalist logic held back the firm establishment of the right to work. Without denying the importance of work for the individual and society, economists insist that access rights to work are not at home in a system of rights because they cannot or should not be guaranteed. Access to work should rather be considered a goal to be progressively realized (Sarkin, 2011). Taking these objections of feasibility into account – in disregard of the fact that these arguments have been contradicted - I will argue that from a human rights perspective, even if we cannot demand states to provide their subjects with employment, we should expect them to refrain from legislation that excludes

29 individuals from the labour market. Translated into the language of rights this could be formulated as: “No one shall be subjected to a prohibition to legal employment”, bringing the moral duties we agreed upon in the Declaration closer to our legal obligations.

While such provision might seem to make no difference to nationals whose governments are committed to combat unemployment anyhow, for refugees, stateless persons, and migrant workers, such a clause would have great impact. These groups of peoples are either excluded from the employment market or enjoy limited access. However, a negative obligation not to obstruct access to employment would not only affect them, but both countries of origin and receiving countries as well. In the context of globalization, it actually touches upon the course of life of practically each and every one of us. It would bring into question protectionist state programs that exclude foreign workers from the national labour market, and influence our thinking about the right to freedom of movement across national borders.

Josh Entsminger Edinburgh Are Human Rights the Low Hanging Fruit?: Law, Socioeconomic Status, and the Distribution of Access to Life Sustaining Operations and Processes Human life is pre-eminently qualitative; as such, it is in the qualities of experience that pursuits, programs, and institutions find their content and the terms of their analyses. Hence, the attempt to provide security by human rights is conditional, whether explicit or not, to the attempt to secure some set of qualitative experiences for persons (security, enjoyment) instead of others (pain, fear, ect). The form of such investment has often been taken between the development of capacity for people to select their own experiences (positive) and the development of the capacity for institutions to fabricate better situations for such people to not have to worry about selecting out certain experiences (negative). Each of these turns on the axis of material access to means over and above subsistence; provisionally, these might be called the life sustaining operations and processes. It has been well established that low socioeconomic status, reflective of the condition of access to such means, alters cognitive function as much as the organization of social institutions. This paper concerns itself with the relation between the distribution of means, capacity development, and the political function of human rights unto its position in the legal foundations of the developing international order. Specifically, this paper investigates whether or not the legal position of rights is sufficient to answer and adjudicate the current gap in the distribution of means as it relates to capacity development, all the way down from altered cognitive abilities to the teleological presumptions of human rights in the organization of an order more fulfilling of the needs of the human species to survive and thrive.

30 PANEL 6 Politics and Justification

Dr Daniela Ringkamp, Research Assistant in Philosophy University of Magdeburg The Implementation of Human Rights: Moral Challenges, Political Perspectives Human Rights Research in Contemporary Political Philosophy is characterized by a distinction between moral and political accounts of human rights. Moral accounts, represented by Alan Gewirth, Ronald Dworkin, Rainer Forst or Stefan Gosepath, consider human rights as moral rights, which are antecedent to the state, but still have important political functions. Political accounts, represented by John Rawls, Thomas Pogge, Charles Beitz or Joshua Cohen, emphasize the institutional character of human rights, according to which human rights are articulated within the structures of the state and political institutions. This political notion of human rights has two consequences. On the one hand, human rights can only be violated by government representatives and political agencies. On the other hand, the state holds the necessary political power for guaranteeing human rights and therefore has a special obligation to secure them. As these political accounts allow for a direct political enforcement of human rights, contemporary Political Philosophy is especially interested in advancing such accounts.

In my presentation, I would like to focus on both accounts with regard to their different options for realizing human rights. My aim is to strengthen the importance of moral foundations for the civil and political implementation of human rights. Moral accounts have recently been marginalized; however, they enable a multi-layered discussion about the realization of human rights claims. Just like political concepts, moral accounts point to the state as a central addressee of human rights. However, moral foundations distinguish between a moral and a political sphere of competence for guaranteeing human rights: In moral accounts, human rights are regarded as preceding the state. They are constructed within a process of reciprocal attribution of human rights claims, which takes place before each political implementation and which includes every individual as a relevant moral entity. This is why, from a moral perspective, every individual is concurrently regarded as an author and addressee of human rights demands. From a political perspective, it is the state, which is in a position to secure human rights. Nevertheless, the responsibility of the state results from the moral responsibility of every single individual for guaranteeing human rights claims.

This distinction between a moral and a political sphere of competence offers starting points for a differentiated discussion about the realization of human rights, which considers the role of the state, but also emphasizes the third-party effect of human rights and the importance of civil society. In my presentation, I would like to focus on these different spheres of responsibilities between states and individuals, and I would like to outline a complex network in charge of realizing human rights. I will also deal with some objections to moral foundations of human rights. In this context, I will reject criticisms that point to the excessive demands individuals are confronted with, and I will also reject objections which hold that the distinction between human rights and moral rights would be relinquished, if individuals were to be seen as addressees of human rights.

Prof Makoto Usami, Professor of Philosophy and Public Policy, Kyoto University Human Rights as the Rights of Humans: Philosophical Not Practical

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In the recent literature in legal and political philosophy, an increasing number of authors have advocated the practical conception of human rights. Inspired by John Rawls’s political liberalism and political notion of human rights in the context of international relations, Charles Beitz argues that the naturalistic theory of human rights, according to which these rights are those that we hold simply in virtue of being human, tends to distort rather than illuminate international human rights practice. Instead he proposes the practical theory that finds the distinctiveness of human rights in their role or function in constraining state sovereignty in modern international political practice. In the same vein, Joseph Raz objects to the traditional approach to human rights and suggests an alternative approach based on the current international system. Despite the impacts that the practice-based view on human rights might have if it were correct, few efforts have been made to scrutinize its pertinence.

To fill the aforementioned gap in the literature, this paper examines the practical conception of human rights. I explore two types of difficulties facing this conception: the contingency of rights charter and the contingency of rights holders. The contingency of rights charter refers to the fact that the content and force of the rights advanced by the practice-centered view depend on the current practice of international human rights, which is in turn contingent on international Realpolitik and on the human rights norms shared by powerful actors in this politics. The contingency of rights holders denotes that a class of supposed rights holders is defined by the existing international human rights practice. The two kinds of contingency imply, so I argue, that some of those who are deprived and vulnerable might not be protected in terms of human rights.

Based on my negative assessment of the practical conception of human rights, this paper seeks to develop a new form of the philosophical conception. This form is based on the observation that human life has two fundamental characteristics: voluntariness and vulnerability. The need for respecting human voluntariness provides grounds for one group of civil rights as well as political rights; the need for protecting human vulnerability establishes economic and social rights and supports the other group of civil rights. My version of the philosophical view considers the scope of human rights in a moral sense as narrower than those enshrined in international human rights law. In so doing, this version avoids the two problems of contingency that dog the practice-based view. The paper concludes by noting that the philosophical approach to human rights is more promising than the practical approach.

Sem de Maagt, PhD Candidate Utrecht University

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