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Legal vs. Moral Rights Quiz

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Right: a just claim and/or a legal claim – with a corresponding moral/legal duty? Liberty / negative right vs. positive right. Other categorizations?

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Human rights: rights that we can claim (morally, at least) simply by virtue of being human. How does this definition align with the rights in the UDHR?

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Human: Tutu – to be free, to be interdependent (contradiction?), to be creative, expressive, of equal worth before God – imago dei

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What is a human? • “As far as we can tell, from a purely scientific viewpoint, human life has absolutely no meaning. Humans are the outcome of blind evolutionary process that operate without goal or purpose. Our actions are not part of some divine cosmic plan, and if planet Earth were to blow up tomorrow morning, the Universe would probably keep going about its business as usual... Hence any meaning that people ascribe to their lives is just a delusion.”

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utilitarianism-protes greatest happiness maximize pleasure and minimize pain

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Human Rights & Justice o Rawls o veilofignoranceexperiment-wouldproduce(hethinks)twoprinciples of justice:

  1. Equal basic liberties for all citizens (including speech and conscience/religion) which take priority over general welfare. And
  2. “The difference principle” Social and economic equality, allowing only for those inequalities that work to the advantage of the least well off. § (Consent, autonomy and reciprocity are key to Rawls.)

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teleological - the purpose of the practice in question, and

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Honourific - what virtues should be honoured or rewarded.

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Human Rights & Justice o Aristotle - justice is

  1. teleological - the purpose of the practice in question, and
  2. Honourific - what virtues should be honoured or rewarded. § For Aristotle, justice means giving people what they deserve, each person their due. §

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Human Rights & Justice o Critical Theory / Critical Legal Studies / Critical Race Theory / Queer Theory: • Socialbinary(privilege,intersectionality) • HegemonicPower(acrossrace,class,gender–internalized oppression) • LivedExperience(micro-aggressions) • SocialJustice(equity)

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UDHR: Basic Structure • Preamble – why we are issuing this declaration • Article 1 – The foundation of the declaration: equal dignity and spirit of brotherhood • Article 2 – equal entitlement to rights and freedoms • Article 3-5 – foundational rights in any society / group (life, security, basic freedom) • Articles 6-11 – rights within a legal system (legal recognition, due process, remedies) • Articles 12-21 – rights and (especially) freedoms within society and nation, civil and political • Articles 22-27 – social and economic, “positive rights” • Article 28 – aspirational (social order that can fully realize these rights) • Article 29 – duties to the community and limits to rights

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The Human Element of the Fundamental Freedoms Freedom of conscience,Freedom of religionFreedom of thought, belief, opinion, and expression freedom of the press and other media of communication,. Freedom of peaceful assembly Freedom of association

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Formal equality “essentially involves ensuring equal treatment for those in similar situations and different treatment for those in dissimilar situations – it is a concept that involves ‘treating likes

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Substantive equality, on the other hand, “recognizes that not all differences in treatment are violations of equality rights and that differences in treatment are sometimes necessary to achieve true equality.”

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The Charter of Rights and Freedoms uJudiciary’s role in protecting rights – s. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

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The Charter of Rights and Freedoms uSection 1 uThe Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

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Oakes Test – limitations on rights uPressing and substantial objective uRational connection uMinimal impairment uProportionality

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Human Rights and the Rule of Law “the rule of law requires that the law afford adequate protection of fundamental human rights. It is a good start for public authorities to observe the letter of the law, but not enough if the law in a particular country does not protect what are there regarded as the basic entitlements of a human being.”

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Elements of the Rule of Law

  • Law is clear and known
  • Law is effective
  • Law is stable over time
  • Law rules the rulers and the ordinary citizens - Law employs impartial and fair procedures
  • Law is enacted in open and transparent manner

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David Novak: The Judaic foundation of rights

  1. God and human persons 2. Human persons and God 3. God and community
  2. Community and God
  3. One human person to another
  4. Human persons and their community
  5. Human community and its personal members

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Magna Carta 1215

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Reformation 1517

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Petition of Right 1628 -No taxation without representation. King can’t seize property. King can’t imprison without cause.

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Abolition of Torture 1640

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Writ of Habeas Corpus 1679 “you have the body” – long common law history. ”The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have against law been deprived of it.” Chief Justice Vaughan, 1670. Made statute law in 1679.

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English Bill of Rights 1689

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Declaration of the Rights of Man and the Citizen 1789

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American Bill of Rights 1791

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Abolition of Slavery 1834 1865

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Women’s Suffrage 1918

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UDHR “Human Rights began in 1948

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UN conceived of by allied powers as improved League of Nations, an institution for preserving peace, preventing war

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Single mention of human rights in the UN Charter, but rapid growth in the importance and attention given to the concept • UDHR adopted, then the conventions in 1976 • Human rights conventions largely depend on individual countries choosing to respect them, require sovereign states to protect them • But what should the “community of nations” do about egregious cases of human rights abuses?

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Violations of laws of war / humanitarian law • 1. International laws of war and humanitarian law precede the post- WWII “human rights era” • 2. During and after WWI, nations placed captured enemy combatants on trial for violating laws and customs of war. • 3. Article 227 of Treaty of Versailles authorized special tribunal to try Germany’s Kaiser Wilhelm II, making even a head of state subject to prosecution. • 4. Canada War Crimes Act 1946 – jurisdiction to Canadian tribunals in occupied Europe and Asia (see also CCC, Charter, and CAHWCA) • 5. Post-WWII Nuremberg and Tokyo trials (multinational effort)

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ICT Yugoslavia and ICT Rwanda • More recent ad hoc international criminal tribunals • More international than Nuremberg and Tokyo • Took two years to establish • Set up for a specific purpose and with limited jurisdiction • Provides impetus for revisiting idea of permanent ICC

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Rome Statute (1998, 2002) • Art. 5: The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole [...]: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.

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• Hope to prosecute crimes in a more timely way • Hope to capture smaller scale incidents than a Rwanda or Yugoslavia • Jurisdiction: crimes by a national of a state party; or on the territory of a state party; or referred by Security Council • Complementarity principle: court of last resort • ICC Registry (bureaucracy supporting the court) also administers three bodies that exist to assist victims or crimes against humanity

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International Intervention and R2P • When is internamonal military intervenmon jusmfied? • R2P provides the doctrinal basis; UN Charter the “legal” basis • R2P tries to shio focus from ”sovereignty as authority” to “sovereignty as responsibility” • Idenmfies domesmc issues as a concern to internamonal community, threat to internamonal peace

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Responsibility to Protect (as articulated by International Commission on Intervention and State Sovereignty, 2009) • 1. Each state is responsible to protect its population from genocide, war crimes, and crimes against humanity • 2. It is the responsibility of the international community to help states exercise this responsibility and to build the capacity to protect their populations • 3. The international community is responsible to be prepared for collective, timely, decisive action, in accordance with the UN Charter, on a case-by-case basis, and in cooperation with relevant regional organizations as appropriate, should #1 and 2 be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, and crimes against humanity

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Just war theory • Right intention: to prevent human suffering • Last resort: means short of force unlikely to stop aggressor • Proportionality: military option must be proportional to the threat • Reasonable prospect: consequences of action likely to be better than inaction

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UN Charter, Article 1, Purposes of UN • 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; [prevention] • 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples [...] • 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

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THOSE WHO ARE PROSTITUTED: • Female • Young • Indigenous • Abused • Neglected • Addicted • Groomed • Poor

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Female 94% of prostitutes are female. • Young Median age in Canada is 18. • Indigenous Up to 60% of the prostituted. • Abused childhood sexual abuse is common • Neglected absentee fathers common • Addicted substance abuse common • Groomed majority are coerced / manipulated • Poor median income: $18 000 a year

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• Male Almost exclusively men – 99% male • Old Average age of 41.6 years old • Educated 84% have post-secondary education • Stable Johns typically make $69,000+ • Married Over 50% are married

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THOSE WHO CONTROL THE PROSTITUTED - PIMPS • Diverse • Controlling • Wealthy • Abusers • Diverse “Pimps” or “Madams” • Controlling Take total control • Wealthy Extremely lucrative - $ 632,000 • Abusers Typically use the coercion cycle

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FROM GROOMING TO TRAFFICKING INITIAL HELP SEXUAL QUOTAS DRUG INTRODUCTION QUITTING COSTS TRAFFICKING Pimp takes over all advertising responsibilities Pimp takes over control of what sex acts are performed when, how much money is charged and gets final say on all clients Pimp forces use of drugs to either prolong or induce sleep Pimp informs prostitute she will owe him money if she tries to get out or set up her own “business” Pimp forces prostitutes to move from place to place to avoid police and maintain control.

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BIBLICAL RESPONSE TO A BROKEN WORLD Exodus 20:14 “You shall not commit adultery” Proverbs 23: 27-28 A prostitute is a deep pit...like a bandit she lies in wait, and multiplies the unfaithful among men John 8:11 “Neither do I condemn you; go and from now on sin no more”

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BIBLICAL PRINCIPLES RE: PROSTITUTION

  1. Prostitution is a sin, but can be forgiven
  2. God exhibits special care for people like the prostituted who are: sojourners, needy, afflicted, fatherless, enslaved and young
  3. God is indignant with pimps and johns who abuse the poor and needy, and His justice demands an accounting
  4. Christians have a duty to speak out for the vulnerable
  5. We always need to be on guard against adultery because it is the root issue

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CANADIAN LAW BEFORE 2014 Prohibited: • Operating a “bawdy house” • Making a living of off other people’s prostitution • Soliciting or advertising for prostitution • Actual transaction – money for sex – was legal

True

BEDFORD CASE Supreme Court of Canada strikes down prostitution laws as unconstitutiona

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1999 – Sweden criminalizes the purchase of sex but prostitutes have legal immunity and are offered government-sponsored ways to “get out” • 2004 – Government inquiry finds street prostitution is cut in half. Less men buy sex, less people think prostitution is okay. • 2008 – Police wiretaps of human trafficking gangs reveal traffickers now view Sweden as a “bad market”.

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CANADA FOLLOWS SWEDEN’S FOOTSTEPS Protecting Communities and Exploited Persons Act (PCEPA) prohibits • prohibits offering to sell sex publicly • prohibits purchasing sex for money • prohibits receiving monetary gain knowing it came from prostitution • Explicitly targets pimps and traffickers • Gives immunity to prostituted women

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EVALUATING PCEPA’S AFFECTS Since PCEPA came into force: • 97% less charges against prostituted women. • Charges against the “johns” increased sharply. • Pre-PCEPA 43% of all those charged with prostitution-related offences were women. • Post-PCEPA that figure is down to 7% (93% of those charged are now males) • Post-PCEPA far less people charged with “outdoor” offences.

True

. (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

True

Why freedom of expression?

  1. Truth
  2. Democracy 3. Autonomy

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reedom: do as we are called to do, and be who we are created to be

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International Covenant on Civil & Political Rights Article 19

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

True

International Covenant on Civil & Political Rights Article 19 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals.

True

International Covenant on Civil & Political Rights Article 20

  1. Any propaganda for war shall be prohibited by law.
  2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law

True

Proselytism “The activity of communicating a religion or worldview through verbal communication or through various related activities as an invitation to others to adopt the religion or worldview” (p.253)

True

Great Commission “Therefore, go and make disciples of all nations, baptizing them in the name of the Father, and the Son, and the Holy Spirit, and teaching them to observe all that I have commanded you.

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Freedom of Religion u Conversion Therapy uPastor David Lynn

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Online Harms Act (Bill C-63) u Sexual Exploitation / Revenge Porn / Child Pornography u Establish Digital Safety Office (commission, ombudsman, etc.) u Hate crime and hate propaganda provisions (online) u Criminal Code u Human Rights Act u creates a “recognizance to keep the peace”

True

The pre-born child and abortion Basic logical argument: PREMISE 1: Killing an innocent human being is always a moral wrong PREMISE 2: Abortion is the intentional killing of an innocent human being THEREFORE: Abortion is a moral wrong.

True

Complete – from moment of conception or fertilization, complete being – only need what the rest of us need: time, and a safe environment in which to grow, and that zygote will become embryo, fetus, infant, toddler, child, adolescent, adult, Unique – DNA Living – undergoes metabolism, possesses a capacity to grow, responds to stimuli, maintain homestasis Human – law of biogenesis

True

Legal History and Legal Status of Pre-Born Child • pre-confederation - "quick with child" • 1869 - abortion a crime • 1969 - abortion first legalized • 1988 - R. v. Morgentaler... “I do not think it means what you think it means...” • 1989 - Borowski v. Canada; Tremblay v. Daigle • 1991 - Bill C-43 fails; R. v. Sullivan

True

Residential Schools – History § Residential school - residences away from family home where First Nations children were placed, for purposes of education, by or under the authority of the government of Canada § Industrial school – a residential school for 1,000+ students § Lasted 100 years, government program began in late 1800s, phased out starting in 1969. § Last school closed 1996

True

False

First residential schools – 1830s-1850s – voluntary, run by missionaries, enthusiastically supported by First Nations § 1846 – government begins to fund church-run schools § Numbered Treaties 1-7 included funding for schools on-reserve § Shift in second half of 19th century – First Nations’ parents requests for on-reserve day schools rejected

True

Personhood and Human Rights • Difference between born and pre-born • Size • Level of Development • Environment • Degree of Dependency

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Jurisdictional Difficulties in Canada • Federal jurisdiction – criminal law, AHRA, treaties • Provincial jurisdiction – family law, education, health, welfare

True

Pratten v. British Columbia • Child of an anonymous sperm donor • Wants to know who her biological father is • Wants court to find that legislation that makes that impossible for her, but possible for adopted children, is unconstitutional • Court of Appeal agrees with government • See UNCRC, art. 9

True

Ontario Human Rights Code (preamble) Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well- being of the community and the Province

True

Ontario Human Rights Code Every person has a right to equal treatment with respect to [services, goods, facilities, accommodation, contracts, and employment] without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

True

pecial employment 24 (1) The right to equal treatment with respect to employment is not infringed where, (a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their [religion] gives preference in employment to persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment;

True

Special organizations – the legal test Restricting services or employment for religious reasons? Must show: (a) It is done by a religious organization that is (b) primarily engaged in serving the interests of persons identified by their religion and employing only people who are similarly identified, and (c) religious adherence is a reasonable and bona fide qualification because of the nature of the employment

True

Study Notes

Human Rights and Justice

  • A just claim and/or a legal claim has a corresponding moral/legal duty
  • Human rights are rights that can be claimed simply by virtue of being human

Human Dignity

  • According to Archbishop Tutu, humans are free, interdependent, creative, expressive, and of equal worth before God (imago dei)

Meaning of Life

  • From a scientific viewpoint, human life has no inherent meaning
  • Meaning is ascribed by humans, and is not part of a divine cosmic plan

Justice

Rawls

  • Veil of ignorance experiment would produce two principles of justice:
    • Equal basic liberties for all citizens
    • Social and economic equality, with inequalities that work to the advantage of the least well off

Aristotle

  • Justice is teleological (purpose of the practice in question) and honourific (virtues to be honoured or rewarded)
  • Justice means giving people what they deserve, each person their due

Critical Theory

  • Focus on social binary (privilege, intersectionality)
  • Hegemonic power structures (across race, class, gender)
  • Lived experience (micro-aggressions)
  • Social justice (equity)

Universal Declaration of Human Rights (UDHR)

  • Preamble: why the declaration was issued
  • Article 1: equal dignity and brotherhood
  • Article 2: equal entitlement to rights and freedoms
  • Articles 3-5: foundational rights in any society
  • Articles 6-11: rights within a legal system
  • Articles 12-21: rights and freedoms within society and nation
  • Articles 22-27: social and economic rights
  • Article 28: aspirational (social order that can fully realize these rights)
  • Article 29: duties to the community and limits to rights

The Human Element of the Fundamental Freedoms

  • Freedom of conscience
  • Freedom of religion
  • Freedom of thought, belief, opinion, and expression
  • Freedom of the press and other media of communication
  • Freedom of peaceful assembly
  • Freedom of association

Formal and Substantive Equality

  • Formal equality: equal treatment for those in similar situations and different treatment for those in dissimilar situations
  • Substantive equality: recognizes that not all differences in treatment are violations of equality rights, and that differences in treatment are sometimes necessary to achieve true equality

The Charter of Rights and Freedoms

  • Section 1: rights subject to reasonable limits prescribed by law
  • Section 24(1): anyone whose rights or freedoms have been infringed may apply to a court for a remedy

Human Rights and the Rule of Law

  • The rule of law requires adequate protection of fundamental human rights
  • Elements of the rule of law include:
    • Law is clear and known
    • Law is effective
    • Law is stable over time
    • Law rules the rulers and the ordinary citizens
    • Law employs impartial and fair procedures

The Judaic Foundation of Rights

  • David Novak: the Judaic foundation of rights is based on the covenant between God and human persons, and between human persons and their community

Historical Development of Human Rights

  • Magna Carta (1215)
  • Reformation (1517)
  • Petition of Right (1628)
  • Writ of Habeas Corpus (1679)
  • English Bill of Rights (1689)
  • Declaration of the Rights of Man and the Citizen (1789)
  • American Bill of Rights (1791)
  • Abolition of Slavery (1834, 1865)
  • Women's Suffrage (1918)
  • UDHR (1948)

International Human Rights Law

  • UN Charter: maintaining international peace and security, developing friendly relations among nations, and achieving international cooperation
  • Human rights conventions depend on individual countries choosing to respect them
  • International crimes: violations of laws of war and humanitarian law

International Criminal Court (ICC)

  • Rome Statute (1998, 2002): jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression
  • Complementarity principle: court of last resort

Responsibility to Protect (R2P)

  • Sovereignty as responsibility, not authority
  • ICISS (2001): each state is responsible to protect its population from genocide, war crimes, and crimes against humanity
  • International community is responsible to help states exercise this responsibility

Just War Theory

  • Right intention: to prevent human suffering
  • Last resort: means short of force unlikely to stop aggressor
  • Proportionality: military option must be proportional to the threat
  • Reasonable prospect: consequences of action likely to be better than inaction

Test your knowledge on different types of rights, including just claims, legal claims, liberty, negative rights, and positive rights. Explore the concepts of corresponding moral and legal duties.

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