2017 (4) | 2016 (4) | 2015 (5) | 2014 (3) | 2012 (14)

The Sociological Argument in Human Rights Doctrine

Abstract: 
Human rights have long been thought of as ‘natural and sacred rights’ from a universalist ‘everywhere and always’ perspective. But relativism arose right from the time of the French Revolution with Burke and Joseph de Maistre contesting this vision of ‘man’ as abstract as opposed to situated. More recently, the sociological approach with the Marxist perspective has set formal rights against real freedoms. Contemporary law has taken all these challenges into account and developed the international corpus of human rights by emphasising effective rights for everyone – ‘without distinction of race, sex, language or religion’ as underscored in Article 1 of the United Nations Charter – rights that are accessible and adaptable to the specific needs of vulnerable groups, including through ‘positive discrimination’. Far from undermining the legal idealism and universality of human rights, the sociological argument enhances it with a permanent dialectic of law and fact.

Is sovereignty still the foundation of international law?

Abstract: 
The answer to the question ‘Is sovereignty still the foundation of international law?’ should probably be ‘yes’ if we examine the wording used in most of the texts of positive international law together with mainstream scholarship and diplomatic language. The language of sovereignty is all around. Yet the answer should probably be ‘no’ if we look, not at what the law says or what is said about it, but instead at what it does in social reality.

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo). Preliminary Objections: The Unfinished Story of Diplomatic Protection

Abstract: 
The judgment of the International Court of Justice on preliminary exceptions in the Diallo case shows that the venerable institution of diplomatic protection (and by ricochet the Court that implements it), while conserving its original shape and outline, has incontrovertibly evolved to reflect the structural changes affecting international society. The paper first analyses change within continuity. It also shows that this change is however limited: in the field of protection foreign investment, the Court is reiterating the solutions it came up with in 1970 in Barcelona Traction, thus ensuring continuity without change.

Values, rights and duties in the development of human rights

Abstract: 
In the light of the recent United Nations Declaration on Human Rights Education and Training, the author returns to the dialectic between rights and duties in the theory and practice of human rights with the appearance of ‘horizontal’ obligations towards others, such as humankind and the planet. New attempts are being made to set human rights against ‘traditional values’, as in Russia, or in France, to have a ‘republican morality’ or even a ‘secular morality’ prevail over individual autonomy. It is more necessary than ever to articulate fundamental rights with collective values.