Special Issue Human Rights: New Possibilities/New Problems: Volume 56

This chapter addresses the alienability or inalienability of the bodily self by looking at continuing legal, economic, and cultural issues surrounding three case studies: the growth of cell lines, live organ transfer, and the practices of “forced prostitution” as a contemporary form of slavery. The essay contends that it is, ironically, Locke and Hegel's shared hyperliberal notion of the self as inalienable property that sustains a potential basis, in law and in culture, for troubling cases of self-alienation which persist in the case studies offered.

Two paradoxes constitute the discourse of human rights. One concerns the relationship between “the human” and “the political”; the other invokes the opposition between the universalist moral character of human rights and the practical, particular context in which they become manifest. This chapter argues how and why these paradoxes will not go away – a good thing, too – over and against classical and contemporary writers who have argued for the priority of one or the other. After elucidating the powerful and enduring character of these paradoxes in history and political theory, I argue that human rights discourse only makes sense in terms of the arguably more primary discourses of democracy, political virtue, and justice if it is to avoid being a deceptive, rhetorical cover for dubious political practices.

This chapter examines how international human rights law is shaping the politics of immigration. It argues that migrant human rights are neither conceptually nor practically incompatible with an international order premised upon state territorial sovereignty, and that the specific aesthetics of the contemporary international human rights system, namely its formalistic and legalistic tendencies, has facilitated its integration with a realm of policymaking traditionally reserved to state discretion. An exploration of two areas in the emerging field of migrant human rights traces the multi-scalar transnational legal processes through which these norms are formulated and internalized.

Support for child rights is widespread, and the 1989 Convention on the Rights of the Child is the most widely ratified treaty ever. Surprisingly, however, we find that child rights discourse is not integrated as a core element of mobilization around either the eradication of female genital cutting practices or the provision of free primary education. Analyzing history and the content of child rights claims related to these issues, we unpack this puzzle. In the process, we illuminate the constraints on mobilizing strategies in general and some difficulties inherent in using child rights discourse in particular.

This chapter is intended to elaborate on the existing academic literature addressing the migration of constitutional ideas. Through an examination of ongoing efforts to enshrine “defamation of religion” as a violation of international human rights, the author confirms that the phenomenon of migration is not restricted to positive constitutional norms, but rather also encompasses negative ideas that ultimately may serve to undermine international and domestic constitutionalism. More specifically, the case study demonstrates that the movement of anti-constitutional ideas is not restricted to the domain of “international security” law, and further, that the vertical axis linking international and domestic law is in fact a two-way channel that permits the transmission of domestic anti-constitutional ideas up to the international level.

In reaching the findings presented herein, the chapter also adds to the universalism–relativism debate by demonstrating that allowances for “plurality consciousness” on the international level may in certain instances undermine fundamental norms previously negotiated and accepted as authoritative by the international community. From this perspective, the movement in favor of prohibiting “defamation of religion” is not merely a case study that helps to expand our understanding of how anti-constitutional ideas migrate, but also indicative of a reenergized campaign to challenge the status, content, and stability of universal human rights norms.

Because international human rights and humanitarian law traditionally binds only state action, courts must reconceive the state so that nominally nonstate activity, such as the acts of private military contractors, fits within this legal framework. I summarize state action cases under U.S. constitutional law and the nascent jurisprudence in U.S. courts involving the application of international law norms to government contractors. I also consider holding nonstate actors accountable for violations of international law norms through ordinary U.S. domestic law tort suits. Yet, even in this context delineating the public/private divide is a core part of the analysis.