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By the 1990s, India’s appellate courts had become closely involved in the regulation of street vending in several metropolitan cities. However, despite the frequent use of legal mechanisms by street vendor collectives, there has been little progress towards “formalization” of the street vending economy. To understand the limited impacts of legal intervention, it is necessary to examine the timing and the circumstances under which street vendor collectives first turned to judicial forums for protecting their livelihoods. Based on a historical examination of street vendor politics in Bombay and Madras, I show that legal mobilization in both instances was a response to serious threats faced by the political regimes that had previously shielded street vendors from dispossession and exploitation, rather than being a direct result of new legal opportunities (such as the emergence of public interest litigation). Since organized street vendors had a strong preference for maintaining the status quo, litigation was used as an effective method for buying time in the face of a hostile or uncertain political environment, even when the ultimate verdict was not likely to favor street vendors.
Activists have long turned to courts to influence policy. Much of the literature analyzing the experience of activists using courts has focused on judicial outcomes, yet accomplishments beyond successful judgments can be of equal importance as they also effect social change. In particular, engaging in litigation can have a demonstrable impact on the social movements themselves – building and strengthening movements, and providing spaces for manoeuvring. This chapter examines the impact of litigation on the development of the Right to Food Campaign in India, one of India's largest contemporary social movements. Using qualitative data from in-depth interviews with activists and lawyers and a comparative analysis with an earlier case, this chapter analyzes the factors and conditions under which courts can be catalysts for social mobilization, including the existence of opportunities for reform, pre-existing rights consciousness and organizational resources available for mobilization.
This article examines an environmental experiment in northern Kenya that went badly amiss. Focusing on the introduction of an invasive plant, prosopis juliflora, it explores wider issues of scientific hegemony, political identity, and land conflicts. Two legal cases pitting a small pastoralist community against the Kenyan state are discussed, which reveal a new but generally unsuccessful strategy by indigenous groups of utilizing courts to address injustices. The research draws on ethnographic, archival, and visual materials collected over a thirty-five-year period to demonstrate the violence and impoverishment that can be associated with technical interventions aimed at “greening” the environment.
In Chapter 6 I examine indigenous water rights in Colombia, specifically, the declaration by Colombia’s highest court that the Atrato River is a ‘legal subject’ in response to indigenous concerns about water management. This watershed case of November 2016 was an action for protection of constitutional rights brought in the Colombian Constitutional Court on behalf of a number of indigenous and afrodescendent communities, in response to serious environmental and humanitarian damage caused by illegal mining in the region of Chocó. I show in this chapter how the legal person model for the Atrato is adopted in recognition of the ‘biocultural rights’ of indigenous communities, but the approach is clearly not a complete answer to indigenous water injustice. Indigenous peoples also need substantive water allocations, in order to have a voice in decision making about river management and use. Yet, because the river is a subject it has representatives from the community, or guardians, and they have a voice on behalf of the river, where previously they had none. The Colombian case is highly significant, in that it underscores the strength of legal person models in creating new jurisdictions for indigenous peoples in which to participate in river sharing, governance and use.
In chapter 3 I introduce the two key regulatory tendencies relevant to the consideration of indigenous water rights in comparative law in this book. One of these developments is the idea that governments should ‘commoditise’ the natural environment and use private property rights and market mechanisms in water regulation and allocation; an approach typically counterposed with the idea of treating access to water as a fundamental human right, entitled to all. The other is the tendency to devise new legal mechanisms like ‘legal personality’ to protect the ‘rights of nature’ and address social or community concerns around water governance and quality. Both trajectories play out repeatedly in debates about indigenous rights to water in comparative law, and resulting legal and policy frameworks in the country studies considered in this book. I argue that most regulatory frameworks are in fact a combination of public and private interests, and suggest that both private and public mechanisms may have a place in debates about how best to provide for indigenous water rights.
Chapter 2 explores the tensions in debates about indigenous water rights in legal and political theory, setting up the key propositions for this book. I argue that legal and policy mechanisms that seek to recognise cultural relationships with water and involve indigenous peoples in water governance should strive towards recognising indigenous water relationships but, more importantly, indigenous water jurisdiction. This argument is central to the consideration of the four country studies included in this book, in which law and policy is sometimes able to provide a space for indigenous groups to exercise jurisdiction in planning and governing their water resources. I also contend that the reason states should provide for indigenous water rights is an imperative of distribution. Such rights are needed not only to remedy the historical injustice of non-recognition but because indigenous exclusion from water law frameworks is ongoing.
In Chapter 4 I consider the limited recognition of traditional, cultural water rights in Australian law. In the Australian model, property rights in water and water markets accompany government oversight and planning. Australian water law has undergone drastic reforms since the early 1990s, yet little has been done to provide indigenous peoples with the right to use water on their lands for commercial and productive purposes. Native title rights to water have been interpreted narrowly by the courts according to traditional and cultural uses, and are usually accounted for as in-stream cultural and conservation values in water catchments, distinguishing them from the consumptive rights held by other users. Yet indigenous Australians continue to make up the most disadvantaged sector of Australian society and Australian governments have committed to reducing that disadvantage, including by supporting the productive use of indigenous lands. The Australian experience demonstrates the difficulties inherent in recognising historical indigenous rights to land and resources, as indigenous water practices change over time and conflict with other uses. The study highlights the need for an allocative model, enabling both the reservation of water for indigenous allocation and the redistribution of water rights in fully allocated catchments.
This chapter on participation in goodness, and on ethics or a good life, has been prepared for by the previous chapter, on beauty and desire. Like the chapter on truth and epistemology before that, this chapter on goodness is robustly realist: it sees what would be morally good for a person, community, or situation to align with the reality and good of the thing considered, which it has by participation in God. The twin focuses here are virtue ethics (which is explored in terms of the alignment of the good-as-moral with the good-as-excellent) and natural law (which is explored in terms of the alignment of the good-as-moral with the good-as-beneficial). No firm wedge, however, is driven between those two approaches, which are both related to God as source and goal in participatory terms. The chapter moves to a discussion of the expectation of the coherence of the good in a participatory framework, such that the goodness that creatures have (and, here, especially human beings) is expected naturally to align with the nature of the good as communicated, for instance, in revelation. This is explored in contrast with the thought of John Duns Scotus. The chapter ends with a participatory discussion of the nature of law in its various forms, including the participatory and theological backdrop to notions of international law.
Individuals often invoke the moral rights that they hold as members of certain groups or social categories. Yet, there is ambiguity in both terminology and theorizing surrounding the nature of those rights. Focusing on the paradigmatic case of disabled people’s right to reasonable accommodations, this paper develops a descriptive account of those group-related rights, as a distinct category of rights which I call ‘membership rights’. Membership rights neither fit the concept of ‘human rights’, as not all people hold them, nor are they typical ’group rights’, as they are held by members of some group as individuals, not by groups collectively. In addition, the grounding of membership rights is linked to the distinct features of group members, be it their special interests or special circumstances. Finally, the content of membership rights includes distinct entitlements and correlating duties, which are not secured by human rights, group rights, or any combination thereof. Recognizing the distinct features of membership rights may have practical implications by strengthening efforts to secure legal protection to membership rights. It also invites further theoretical inquiry, for example, towards identifying other specific rights that fit into this category.
What, if any, are the moral norms governing the international taxation regime if the sceptic is right to think that considerations of distributive justice do not apply beyond the state? I sketch an answer to this question by examining Tsilly Dagan’s illuminating recent book International Tax Policy: Between Competition and Cooperation. In her work, Dagan identifies the position of Thomas Nagel, an influential global justice sceptic, as predominant among commentators in legal scholarship and policy debates on international taxation. According to Nagel, multilateral cooperation is appropriately conceived as a bargain between mutually self-interested states. In tracing the implications of his position for international tax policy Dagan argues that even a sceptic like Nagel is committed to identifying some considerations of distributive justice beyond the state to ameliorate the harmful effects of tax competition. In response I argue that Dagan is correct to claim that the global justice sceptic is committed to seeing cooperation in international tax policy as constrained by moral norms, but that these norms are what Nagel calls humanitarian duties rather than duties of justice. I establish that Dagan’s argument that Nagel is committed to a duty of justice to promote distributive justice abroad faces some significant obstacles and suggest that Dagan can ground her argument in a humanitarian duty that Nagel does accept. The upshot of the argument is that even if the sceptic is right to think that considerations of distributive justice do not apply beyond the state, multilateral tax cooperation is governed by a duty of states to prevent human rights deficits where they can.
The author presents a necessarily brief summary of Catholic Social Teaching (CST) regarding immigration, featuring especially Pius XII's much neglected apostolic constitution Exsul familia. He also sets out some of the philosophical presuppositions of CST as it pertains to immigration. These presuppositions are to be found, he maintains, especially in the writings of Aristotle and Thomas Aquinas. He then examines in some detail Francisco de Vitoria's ideas regarding immigration, based as they are upon Aristotelian and Thomistic principles. Finally, he offers answers to questions that have arisen over the course of the essay.
The final chapters of this book look at how a participatory outlook can inform and has informed a vision of the world and what it means to live, act, pray, and seek God in it. This, the first of these chapters, considers knowledge and knowing in participatory terms. Knowledge is seen as a participation of the knower in the known, or a sharing from the known to the knower. This undergirds a 'realist' epistemology, in that knowing rests on the reality of the thing that is known. That said, it also stresses the creaturehood and particularity of the knower and the manner of knowing: that which is known comes to be in the knower in the manner of the knower, whether we are talking about our knowledge of an animal, of a plant, or of God. In the case of God, most of all, the knower never exhausts the depths of what is known. That also applies, however, although to a different degree, in the knowledge of even mundane things, since their deepest reality is a participation in God, which confers a creaturely form of inexhaustibility. In these ways, much of this chapter is an exploration of 'intra-finite participation': about how one creature participates in, or donates to, another. It closes with a discussion of the relation between reason and revelation.
The common good (bonum commune) has, since antiquity, referred to the aim of social and political association, and was particularly prominent in medieval Christian political theology. Since St. John XXIII’s 1961 encyclical letter, Mater et magistra, ecclesiastical statements about social teaching have employed a formulation of the common good, usually in the version that appeared in the Second Vatican Council’s 1965 Pastoral Constitution for the Church in the Modern World, Gaudium et spes, as “the sum of those conditions of social life that allow social groups and their individual members relatively thorough and ready access to their own fulfillment.” This chapter discusses the origins and development of this formulation as well as the ways that it has been used in subsequent Catholic Social Teaching. While it has sometimes been interpreted as an “instrumental” account of the common good, the sources and uses of the notion suggest that it is the particularly modern political component of a fuller notion of the common good continuous with the tradition. In particular, the recent formulation is concerned to limit the power of the modern state and protect the dignity of the human person in the challenging conditions of political modernity.
Discussion on human rights before the International Tribunal for the Law of the Sea (ITLOS or Tribunal) often refers to its ‘considerations of humanity’ dictum. Yet this is just one way the Tribunal takes into account the interests and rights of individuals affected by law of the sea disputes. This chapter uncovers multiple modes of engagement of ITLOS with human rights – some subtle, some bold – across three types of procedure: prompt release, provisional measures and merits cases. It illustrates how ITLOS has achieved a ‘humanisation’ of the obligation of prompt release through its context- and purpose-based interpretation; likewise, parties increasingly invoke, and ITLOS tacitly relies upon, human rights as a basis for provisional measures. While the Tribunal’s reliance on individual rights in merits decisions remains limited to date, it may consider human rights on the basis of ‘reference provisions’ within UNCLOS, the ‘considerations of humanity’ dictum and the prohibition on abuse of rights. The analysis reveals that ITLOS has paved the way for human rights to be taken into account in law of the sea disputes and that UNCLOS provides a legal framework for it.
Much has been written about the relationship of the WTO with human rights. This chapter reexamines the role of human rights in the WTO, focusing on the dispute settlement function of the organisation. It first discribes the dispute settlement mechanism of the WTO and its role in international dispute resolution. Then it sets out the normative framework of the mechanism, pointing out that while WTO dispute settlement does not have jurisdiction over complaints of human rights violations and human rights are often assumed not to be part of its applicable law, except for jus cogens, it can use universal human rights norms in the interpretation of WTO law under the VCLT. An analysis of the practice of WTO dispute settlement shows, however, that references to human rights in substantive matters are extremely rare. This does not imply that the system is blind to the values defended by human rights, however. The system has preferred to take these considerations into account as value-based arguments in the application of WTO law itself. As to procedural law, the WTO imports human rights terminology, even though the mechanism is state to state only.
This chapter analyses the contribution of the International Court of Justice (ICJ) to interpreting and developing rules and principles of international human rights law aimed at ensuring basic protection of individuals. First, the chapter puts into perspective the place of the ICJ within the larger framework of international adjudication and enforcement of human rights norms. Then, the chapter turns to the institutional possibilities and limitations of the Court in engaging in the process of interpreting and developing human rights norms, discussing both advisory proceedings and contentious cases. The analysis addresses all three procedural stages in contentious cases, namely preliminary objections, merits and reparations. Third, the chapter analyses the contribution of the Court to clarifying procedural, substantive and institutional issues concerning the understanding and implementation of key human rights norms. In analysing the case law of the Court, it is important to distinguish between cases involving bilateral disputes with human rights aspects and cases involving matters of general concern for the international community as a whole.
At the international level, there is an increasing recognition that victims can claim reparations from those convicted for crimes that caused harm on victims. The International Criminal Court contains the first reparations regime among international criminal tribunals. This chapter seeks to examine the human right to reparations as enjoyed by victims of international crimes at the International Criminal Court and demonstrate the interaction between international human rights law and international criminal law at the reparations system of the International Criminal Court. Thus, this chapter has three sections. First, human rights clauses of the International Criminal Court’s reparations system are discussed. Second, the status and procedural rights of victims as reparations claimants at the International Criminal Court are examined. Third, how the International Criminal Court Chambers have used and adapted international human rights law to interpret and apply reparations provisions of the International Criminal Court instruments is analysed.
In this chapter, Section 1 discusses the increasing constitutionalization of human right law (HRL) and international economic law (IEL) at national and regional levels of governance and its implications for the settlement of disputes. Section 2 discusses constitutional justice principles as legal basis for impartial third-party adjudication requiring judicial administration of justice and treaty interpretations in conformity with the principles of justice and human rights. Section 3 elaborates in more detail problems of systemic integration and constitutionalist interpretation in IEL (e.g., resulting from fragmentation and forum shopping) and enhance the legitimacy of law and adjudication. Section 4 gives an overview of procedural human rights dimensions in IEL adjudication, like the human right of access to justice and the emerging common law of transnational adjudication. Section 5 discusses procedural and substantive human rights problems in WTO and investment adjudication. Section 6 criticizes trade and investment adjudication for neglecting human rights law and constitutional, distributive, corrective and commutative justice principles.
A recurring theme is the legitimacy and harmonization of jurisprudence among international courts and tribunals. In this context, an important procedural consideration is so-called forum shopping; a strategy by which litigants pursue parallel or sequential proceedings, among multiple jurisdictions, in order to achieve the most favourable result. This chapter explores the differential treatment of forum shopping between the specialized regimes for human rights and the investor-State dispute settlement (ISDS) regime. It contends that the notable contrast between the restrictive rules applicable to individual human rights complaint procedures and the laissez-faire approach of the ISDS regime is instructive as to the place of human rights in the praxis of the international legal order; a procedural privileging of secondary human rights norms such as property rights over the most fundamental jus cogens norms such as the prohibition of extra-judicial executions and torture. The shift from norms to procedures provides a more honest picture of where the contemporary international legal order stands in regard to the fundamental principles that it espouses as unimpeachable axioms.