Human Rights Reasoning and Medical Law: A Sceptical Essay

I am sceptical as to the contribution that human rights can make to our evaluation of medical law. I will argue here that viewing medical law through a human rights framework provides no greater clarity, insight or focus. If anything, human rights reasoning clouds any bioethical or evaluative analysis. In Section 1 of this article, I outline the general structure of human rights reasoning. I will describe human rights reasoning as (a) reasoning from rights that each person has ‘by virtue of their humanity’, (b) reasoning from rights that provide ‘hard to defeat’ reasons for action and (c) reasoning from abstract norms to specified duties. I will then argue in Section 2 that, unless we (a) re‐conceive of human rights as narrow categories of liberties, it becomes (b) necessary for our human rights reasoning to gauge the normative force of each claim or liberty. When we apply this approach to disputes in medical law, we (in the best case scenario) end up (c) ‘looking straight through’ the human right to the (disagreement about) values and features that each person has by virtue of their humanity.     

‘There are no chickens in suicide vests’: the decoupling of human rights and animal rights in Israel

In this article, I consider the shifting politics of animal rights activism in Israel in relation to human rights activism. I find that whereas in the past, human and animal rights activism were tightly linked, today they have become decoupled, for reasons I explore in this article. Although human and animal rights activism once shared social and ideological foundations in Israeli society, today much of the current animal rights activism is assertive and explicit in its disregard for human rights issues, such as the ongoing occupation of Palestine and the treatment of Palestinians. This decoupling has been heightened by the appropriation of animal rights politics by a right‐wing state for the purposes of ethical legitimation. This article considers the dilemmas of ethical responsibilities towards humans and animals as it plays out in one of the most vexed political environments in the world. I consider the shifting politics of human and animal rights activism, and demonstrate how they implicate and entangle each other in the context of the ongoing Israeli‐Palestinian conflict. I further consider what the decoupling of the human and animal rights movements might suggest regarding the ongoing academic critique of human rights and humanism.     

Genetic enhancement--a threat to human rights?

Genetic enhancement is the modification of the human genome for the purpose of improving capacities or 'adding in' desired characteristics. Although this technology is still largely futuristic, debate over the moral issues it raises has been significant. George Annas has recently leveled a new attack against genetic enhancement, drawing on human rights as his primary weapon. I argue that Annas' appeal to human rights ultimately falls flat, and so provides no good reason to object to genetic technology. Moreover, this argument is an example of the broader problem of appealing to human rights as a panacea for ethical problems. Human rights, it is often claimed, are 'trumps': if it can be shown that a proposed technology violates human rights, then it must be cast aside. But human rights are neither a panacea for ethical problems nor a trump card. If they are drafted into the service of an argument, it must be shown that an actual human rights violation will occur. Annas' argument against genetic technology fails to do just this. I shall conclude that his appeal to human rights adds little to the debate over the ethical questions raised by genetic technology.     

Military Uses of Ocean Space and the Law of the Sea in the New Millennium

Military uses of ocean space consist of both movement rights and operational rights. Only movement rights, which include all rights associated with the mobility of seaborne forces, were codified in the LOS Convention. Operational rights, on the other hand, are primarily customary rights that are governed by the regime of freedom of the seas and defended by the naval power of the United States. This article begins by examining freedom of the seas as a principle of international law, as a bundle of user rights, and as a doctrine. It next examines the major challenges to freedom of the seas in terms of a construct called controlled access. After summarizing the major historical elements of controlled access, the article closes with a brief analysis of the threats to freedom of the seas for military purposes that are posed by multipolarity, the shift in U.S. naval strategy from the open seas to the coastal littorals, and in the withering away of U.S. naval superiority. The major arguments advanced throughout the article are that military uses of ocean space are hegemonic in nature, that their preservation depends on clear maritime superiority, and that they will come under increasing challenge and restriction as the balance of power at sea shifts from unipolarity to multipolarity by the middle of the new millennium.     

The contingency of ‘rights’: Locating a global discourse in Aboriginal Central Australia

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations (UN) General Assembly in 2007 and endorsed by the Australian Labor government two years later. This achievement is an essential element in the global politics of Indigenous recognition and includes unique rights, such as the right to a cultural collectivity and Indigenous Cultural and Intellectual Property, while reinforcing the right to self‐determination. Yet this new Indigenous rights regime is both underpinned and constrained by the UN human rights system, the implications of which include constraint within a secular neo‐imperialist liberal paradigm. However, this human rights paradigm can also offer generative potential to challenge existing relations of power. According to Kymlicka, the UN's system of human rights has, after all, been ‘one of the great moral achievements of the twentieth century’. How can these tensions between the aspirations to universal secularism and the right to culture, for instance, be accommodated within the Indigenous human rights discourse? And how does this new international legal and norm‐setting instrument speak to the glaring disjunct between declaration of rights and social fact in central Australia, the focus of this research? The move toward an anthropology of human rights looks squarely at this conundrum and attempts to locate spaces of continuity and co‐option or, conversely, subversion and rejection as local cultures of human rights are articulated.     

Mental Health Functioning in the Human Rights Field: Findings from an International Internet-Based Survey

Human rights advocates play a critical role in promoting respect for human rights world-wide, and engage in a broad range of strategies, including documentation of rights violations, monitoring, press work and report-writing, advocacy, and litigation. However, little is known about the impact of human rights work on the mental health of human rights advocates. This study examined the mental health profile of human rights advocates and risk factors associated with their psychological functioning. 346 individuals currently or previously working in the field of human rights completed an internet-based survey regarding trauma exposure, depression, posttraumatic stress disorder (PTSD), resilience and occupational burnout. PTSD was measured with the Posttraumatic Stress Disorder Checklist-Civilian Version (PCL-C) and depression was measured with the Patient History Questionnaire-9 (PHQ-9). These findings revealed that among human rights advocates that completed the survey, 19.4% met criteria for PTSD, 18.8% met criteria for subthreshold PTSD, and 14.7% met criteria for depression. Multiple linear regressions revealed that after controlling for symptoms of depression, PTSD symptom severity was predicted by human rights-related trauma exposure, perfectionism and negative self-appraisals about human rights work. In addition, after controlling for symptoms of PTSD, depressive symptoms were predicted by perfectionism and lower levels of self-efficacy. Survey responses also suggested high levels of resilience: 43% of responders reported minimal symptoms of PTSD. Although survey responses suggest that many human rights workers are resilient, they also suggest that human rights work is associated with elevated rates of PTSD and depression. The field of human rights would benefit from further empirical research, as well as additional education and training programs in the workplace about enhancing resilience in the context of human rights work.     

Human Rights and Broken Cisterns: Counterpublic Christianity and Rights-based Discourse in Contemporary England

Although human rights are often framed as the result of centuries of Western Christian thought, many English evangelicals are wary of the U.K.’s recent embrace of rights-based law. Yet this wariness does not preclude their use of human rights instruments in the courts. Drawing upon fieldwork with Christian lobbyists and lawyers in London, I argue that evangelical activists instrumentalise rights-based law so as to undermine the universalist claims on which they rest. By constructing themselves as a marginalised counterpublic whose rights are frequently ‘trumped’ by the competing claims of others, they hope to convince their fellow Britons that a society built upon the logic of equal rights cannot hope to deliver the human flourishing it promises. Given the salience of contemporary political conservatism, I call for further ethnographic research into counterpublic movements, and offer my interlocutors’ instrumentalisation of human rights as a critique of the inconsistencies of secular law.     

Rights Based Fishing: Use Rights versus Property Rights to Fish

The basic economic problem of commercial fisheries can be seen as the absence of property rights to the fish stocks. There are, however, both practical and principal obstacles to applying that solution. Instead, the preferable arrangement appears to be stock control by public agencies, combined with exclusive use rights granted, leased or sold to the fishing industry in order to achieve economic efficiency. Incentives to establish such rights can be found both in government circles and in the industry. Both have a vital role to play; plans to establish use rights such as ITQs have run aground on more than one occasion because of opposition from the industry. Use rights can be seen as a tool for government agencies to achieve economic efficiency in the industry. If desired, these gains can be distributed over a wider public through user fees of some kind. There are few examples, however, of substantial user fees, and the industry has been successful in getting such schemes abolished when they have been put into effect. The experience of Russia and, in particular, Estonia is discussed. The absence of user fees can be explained by the need to obtain support for use right schemes from the industry, and the windfall gains from gratis use rights are vehicles for this. Norway and Iceland are two countries which have put in place use rights, but they have done so in different ways. Iceland has an ITQ system while Norway has fishing concessions combined with individual vessel quotas. Some success appears to have been achieved in both countries with these systems.     

From Health to Human Rights: Female Genital Cutting and the Politics of Intervention

ABSTRACT  The international campaign to eliminate female genital cutting (FGC) has, since the early 1990s, actively attempted to divorce itself from a health framework, adopting instead a human rights framework to justify intervention. Several key questions emerge regarding the prominent placement of FGC in the international human rights movement: What are the ramifications of framing FGC as a human rights violation? What actions are mandated by a human rights approach? What perils and pitfalls potentially arise from the adoption of a rights-based framework, and how might they be avoided? In exploring these questions it becomes clear that, although a human rights approach is promising, careful deliberation is required to develop action strategies that offer both protection and respect for the culture and autonomy of those women and families concerned.     

Transnational Storytelling: Human Rights, WITNESS, and Video Advocacy

Video is increasingly utilized by human rights groups as a component in their advocacy strategies. This article looks at how video is used for a range of local, national, and transnational human rights audiences—both traditional and alternative. Drawing on a case study from the Philippines, it considers the challenges and issues faced by WITNESS (www.witness.org), its locally based human rights partners, and other similar organizations as they create and use video as visual evidence, testimony, and moral story before local, international, and transnational human rights audiences. These challenges include the contextualization of stories and sight bites, dilemmas of moving testimony between advocacy and media arenas, and the difficulties of establishing an ethical relationship, a community of witness, at a distance. This article is written in a personal capacity, although it draws on my experiences working as Program Manager at WITNESS.     

Reconciling international human rights and cultural relativism: the case of female circumcision

How can we reconcile, in a non-ethnocentric fashion, the enforcement of international, universal human rights standards with the protection of cultural diversity? Examining this question, taking the controversy over female circumcision as a case study, this article will try to bridge the gap between the traditional anthropological view that human rights are non-existent -- or completely relativised to particular cultures -- and the view of Western naturalistic philosophers (including Lockeian philosophers in the natural rights tradition, and Aquinas and neo-Thomists in the natural law tradition) that they are universal -- simply derived from a basic human nature we all share. After briefly defending a universalist conception of human rights, the article will provide a critique of female circumcision as a human rights violation by three principal means: by an internal critique of the practice using the condoning cultures' own functionalist criteria; by identifying supra-national norms the cultures subscribe to which conflict with the practice; and by the identification of traditional and novel values in the cultures, conducive to those norms. Through this analysis, it will be seen that cultural survival, diversity and flourishing need not be incompatible with upholding international, universal human rights standards.     

Bodily rights and collective claims: the work of legal activists in interpreting reproductive and maternal rights in India

This article engages with anthropological approaches to the study of global human rights discourses around reproductive and maternal health in India. Whether couched in the language of human rights or of other social justice frameworks, different forms of claims‐making in India exist in tandem and correspond to particular traditions of activism and struggle. Universal reproductive rights language remains a discourse aimed at the state in India, where the primary purpose is to demand greater accountability in the domain of policy and governance. Outside of these spheres, other languages are strategically chosen by activists for their greater resonance in addressing individual cases of women claiming reproductive violence within the context of the family as well as localized histories of feminist struggle and social justice. In focusing on the work of legal activists and the discourses which inform their interventions, this article seeks to understand how the language of reproductive rights is used in the context of India, not as a `Western import' which is adapted to local contexts, but rather as one of multiple frameworks of claims‐making drawn upon by legal activists emerging from distinct histories of struggle for gender equality and social justice.     

Anthropology,Politics and the Changing World of Aboriginal Australians

Essentialism has become a fundament of Aboriginal activism in modern Australia, with the result that informed, first-hand empirical observations of anthropologists who chronicle the deterioration of life in many Australian Aboriginal communities tend not to be taken seriously simply because their authors are not ethnically ‘Aboriginal’. This problem has contributed to a relative absence of analysis of the economic history of Aboriginal Australians, fostering instead an approach that prioritises the political and cultural rights of indigenous people above the kinds of life-enhancing circumstances that are necessary for them to participate in the economy and create wealth. This kind of essentialism has also resulted in a disregard for the rights of indigenous people as individuals, rather than as communities seeking self-determination, especially with regard to the rights of women and children. The work of Professor Ronald M. Berndt and Dr Catherine Berndt should serve as an example for today's anthropologists in encouraging broader expert participation in debates on indigenous disadvantage, despite the threat of admonishment or criticism by Aboriginal rights activists wielding the weapon of racial priority or essentialism.     

Social Geomatics: Participatory Forest Mapping to Mediate Resource Conflict in the Bolivian Amazon

This paper describes a participatory mapping method field tested with agro-extractive settlements in the Bolivian Amazon. A regional transition from customary to formal property rights resulting from sweeping 1996 land tenure reforms has led to confusion and conflicts over resource rights, a problem compounded by recent high market prices for Brazil nuts. In response to community requests to clarify resource rights to Brazil nut trees, CIFOR offered to train community members to map trees, trails and other key features themselves. This experience indicates that local residents can map their resources in an effective and efficient way and in the process gather necessary information to mediate competing claims, demonstrate their legitimate resource claims to external stakeholders and make management decisions. We argue that maps and properties are more likely to be seen as legitimate reflections of de facto rights if local stakeholders are involved as a group from the outset.     

Introduction to "Anthropology and Human Rights in a New Key"

In this "In Focus" introduction, I begin by offering an overview of anthropology's engagements with human rights following the American Anthropological Association's (AAA) 1947 "Statement on Human Rights." After offering a rereading of the Statement, I describe the two major anthropological orientations to human rights that emerged in the 1980s and 1990s, following several decades of relative disengagement. Finally, I locate the articles in relation to this history and indicate how, when taken as a whole, they express a new key or register within which human rights can be studied, critiqued, and advanced through anthropological forms of knowledge. This "In Focus" is in part an argument for an essentially ecumenical anthropology of human rights, one that can tolerate, and indeed encourage, approaches that are both fundamentally critical of contemporary human rights regimes and politically or ethically committed to these same regimes.     

A "Consumer's Right" to Choose a Midwife: Shifting Meanings for Reproductive Rights under Neoliberalism

The "right to choose" has long served as the ideological rallying cry for reproductive rights activists. Yet critical attention to the social, political, and economic conditions under which individuals make such choices has been central to anthropological research on reproduction. In the context of neoliberal public policy shifts that favor trust in the market to remedy all social and economic inequality, I explore how women's reproductive rights are becoming characterized by one's ability to consume uneven reproductive "choices." Based on my ethnographic fieldwork with midwifery supporters in Virginia, I examine how organizers have begun to utilize "consumer rights" rhetoric in their struggle for legal access to midwives. One often-unintended result has been intensified divisions within this movement, particularly as low-income "homebirthers" feel unable to claim the identity of "consumer." I use Virginia as a case study to raise broader questions about women's shifting strategies toward securing reproductive rights under neoliberalism.     

Access to essential medicines: a Hobbesian social contract approach

Medicines that are vital for the saving and preserving of life in conditions of public health emergency or endemic serious disease are known as essential medicines. In many developing world settings such medicines may be unavailable, or unaffordably expensive for the majority of those in need of them. Furthermore, for many serious diseases (such as HIV/AIDS and tuberculosis) these essential medicines are protected by patents that permit the patent-holder to operate a monopoly on their manufacture and supply, and to price these medicines well above marginal cost. Recent international legal doctrine has placed great stress on the need to globalise intellectual property rights protections, and on the rights of intellectual property rights holders to have their property rights enforced. Although international intellectual property rights law does permit compulsory licensing of protected inventions in the interests of public health, the use of this right by sovereign states has proved highly controversial. In this paper I give an argument in support of states' sovereign right to expropriate private intellectual property in conditions of public health emergency. This argument turns on a social contract argument for the legitimacy of states. The argument shows, further, that under some circumstances states are not merely permitted compulsory to license inventions, but are actually obliged to do so, on pain of failure of their legitimacy as sovereign states. The argument draws freely on a loose interpretation of Thomas Hobbes's arguments in his Leviathan, and on an analogy between his state of War and the situation of public health disasters.