Protecting stateless children in South Africa through nationality: a children’s rights approach
- Authors: Maziya, Nokwanda Takalanga
- Date: 2024-10-11
- Subjects: Citizenship , Stateless persons , Children's rights , Human rights , Sovereignty
- Language: English
- Type: Academic theses , Doctoral theses , text
- Identifier: http://hdl.handle.net/10962/466469 , vital:76733 , DOI https://doi.org/10.21504/10962/466469
- Description: This study investigates the role of nationality in protecting stateless children. Under interna-tional human rights law, all individuals, including stateless persons, are entitled to certain rights by virtue of being human. Consequently, stateless children should theoretically have access to fundamental rights such as education, healthcare, and social security, even without nationality. However, this study challenges the assumption that stateless children can access these rights merely because they are human. The study reveals that, in practice, stateless chil-dren struggle to access essential rights like education, healthcare, and social welfare without nationality. The study asserts that nationality is crucial for stateless children to access basic rights in South Africa. The study examines various treaties related to nationality and con-cludes that none impose a binding obligation on South Africa to confer nationality on state-less children. The study then draws on international children's rights principles such as the best interest of the child, the right to life, survival and development, and the right to non-discrimination to demonstrate that despite a clear obligation on South Africa in terms of trea-ty law to grant nationality to stateless, these principles, place limits on South Africa's exer-cise of sovereign power. This, in turn, makes way for granting nationality to stateless chil-dren. , Thesis (PhD) -- Faculty of Law, Law, 2024
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- Authors: Maziya, Nokwanda Takalanga
- Date: 2024-10-11
- Subjects: Citizenship , Stateless persons , Children's rights , Human rights , Sovereignty
- Language: English
- Type: Academic theses , Doctoral theses , text
- Identifier: http://hdl.handle.net/10962/466469 , vital:76733 , DOI https://doi.org/10.21504/10962/466469
- Description: This study investigates the role of nationality in protecting stateless children. Under interna-tional human rights law, all individuals, including stateless persons, are entitled to certain rights by virtue of being human. Consequently, stateless children should theoretically have access to fundamental rights such as education, healthcare, and social security, even without nationality. However, this study challenges the assumption that stateless children can access these rights merely because they are human. The study reveals that, in practice, stateless chil-dren struggle to access essential rights like education, healthcare, and social welfare without nationality. The study asserts that nationality is crucial for stateless children to access basic rights in South Africa. The study examines various treaties related to nationality and con-cludes that none impose a binding obligation on South Africa to confer nationality on state-less children. The study then draws on international children's rights principles such as the best interest of the child, the right to life, survival and development, and the right to non-discrimination to demonstrate that despite a clear obligation on South Africa in terms of trea-ty law to grant nationality to stateless, these principles, place limits on South Africa's exer-cise of sovereign power. This, in turn, makes way for granting nationality to stateless chil-dren. , Thesis (PhD) -- Faculty of Law, Law, 2024
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Inadequate menstrual health management and human rights
- Authors: Hartley, Gemma-Maé
- Date: 2022-10-14
- Subjects: Menstrual hygiene management , Human rights , Political philosophy , Transgression , Women Social conditions , Economic, social and cultural rights
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/422506 , vital:71953
- Description: Various human rights bodies have suggested that Inadequate Menstrual Health Management (MHM) could contribute to violations of human rights or, at the very least, is connected to the fulfilment of human rights. Despite recognition of this, there has not been thorough analysis of whether inadequate MHM is a violation of human rights, particularly in political discussions on the philosophy of human rights. Using a liberal cosmopolitan framework, this thesis attempts to bridge this gap and, ultimately, to argue that inadequate MHM constitutes a violation of human rights. This assertion brings with it various complications due to the heavily contested nature of human rights, their correlative duties, and the requirements for a lack of fulfilment to be considered a violation. I address each complication in turn. I argue that the traditional approach to human rights violations fails to consider the various ways that human rights are violated in our contemporary, globalised world. I suggest that structural violations of human rights should not be ruled out, particularly when we consider severe poverty and its by-products. Ultimately, the question of inadequate MHM is concerned with the content of human rights. If inadequate MHM were a violation, it would be a violation of women’s socio-economic rights. However, both group rights and socio-economic rights are contested. This thesis therefore justifies these rights. Group-differentiated rights are argued to be necessary for substantive equality. This is particularly the case when we consider the various risks women face simply because they are women. Women therefore need special protections and provisions for their human rights to be fulfilled. Socio-economic rights are necessary for the well-being and dignity of individuals everywhere. We can justify them even if they are costly, vague, and demanding on states, as critics argue they are. Therefore, if we can accept socio-economic rights and women’s rights, we can argue that inadequate MHM is a structural violation of human rights. Thinking about inadequate MHM in this way means we can respond to it with a level of urgency. This has the potential to improve the well-being, development, and dignity of women. , Thesis (MA) -- Faculty of Humanities, Political and International Studies, 2023
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- Authors: Hartley, Gemma-Maé
- Date: 2022-10-14
- Subjects: Menstrual hygiene management , Human rights , Political philosophy , Transgression , Women Social conditions , Economic, social and cultural rights
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/422506 , vital:71953
- Description: Various human rights bodies have suggested that Inadequate Menstrual Health Management (MHM) could contribute to violations of human rights or, at the very least, is connected to the fulfilment of human rights. Despite recognition of this, there has not been thorough analysis of whether inadequate MHM is a violation of human rights, particularly in political discussions on the philosophy of human rights. Using a liberal cosmopolitan framework, this thesis attempts to bridge this gap and, ultimately, to argue that inadequate MHM constitutes a violation of human rights. This assertion brings with it various complications due to the heavily contested nature of human rights, their correlative duties, and the requirements for a lack of fulfilment to be considered a violation. I address each complication in turn. I argue that the traditional approach to human rights violations fails to consider the various ways that human rights are violated in our contemporary, globalised world. I suggest that structural violations of human rights should not be ruled out, particularly when we consider severe poverty and its by-products. Ultimately, the question of inadequate MHM is concerned with the content of human rights. If inadequate MHM were a violation, it would be a violation of women’s socio-economic rights. However, both group rights and socio-economic rights are contested. This thesis therefore justifies these rights. Group-differentiated rights are argued to be necessary for substantive equality. This is particularly the case when we consider the various risks women face simply because they are women. Women therefore need special protections and provisions for their human rights to be fulfilled. Socio-economic rights are necessary for the well-being and dignity of individuals everywhere. We can justify them even if they are costly, vague, and demanding on states, as critics argue they are. Therefore, if we can accept socio-economic rights and women’s rights, we can argue that inadequate MHM is a structural violation of human rights. Thinking about inadequate MHM in this way means we can respond to it with a level of urgency. This has the potential to improve the well-being, development, and dignity of women. , Thesis (MA) -- Faculty of Humanities, Political and International Studies, 2023
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Discursive psychological analysis on the construction and performance of identity through rights talk on social media related to #FeesMustFall
- Authors: Mashaba, Tumelo Thabo
- Date: 2019
- Subjects: Identity , Right to education , Human rights , Social media -- Political aspects -- South Africa , College students -- Political activity -- South Africa , College students -- Attitudes -- South Africa , College students, Black -- Psychology -- South Africa , College students, Black -- Attitudes -- South Africa , College students -- Psychology -- South Africa , Student protestors -- Attitudes -- South Africa , Student movements -- South Africa , Internet and activisim -- South Africa , Internet in political campaigns -- South Africa , Higher education and state -- South Africa
- Language: English
- Type: text , Thesis , Masters , MA
- Identifier: http://hdl.handle.net/10962/96668 , vital:31306
- Description: #FeesMustFall emerged at the end of 2015 after an announcement that tuitions would increase. The student protests occurred across higher education institutions within the country in which mass shutdowns were initiated, there was the presence of violence and the use of social media. The protests occurred in 2016 but experienced a shift in tone in terms of the violence present in the protests. The research sought to unpack how identity was constructed and performed through rights talk in regards to #FeesMustFall on social media. The methodology worked from a social constructionist perspective where the research consisted of a discursive psychological analytical approach to the texts presented. The discursive repertoires that were identified were: emotions repertoire; struggle repertoire; apartheid repertoire; racial repertoire; and rights repertoire. The subject positions revealed through the repertoires indicated that protesters and supporters constructed and performed their identity in particular ways. They were positioned as black; working class; victims who are enacting a sense of agency; denied their rights; have moral authority and are a parallel to the protesters under apartheid. The repertoire of struggle, racial and apartheid all link with each other. The rights repertoire is the foundation and the emotions repertoire is the tone of the student protests.
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- Authors: Mashaba, Tumelo Thabo
- Date: 2019
- Subjects: Identity , Right to education , Human rights , Social media -- Political aspects -- South Africa , College students -- Political activity -- South Africa , College students -- Attitudes -- South Africa , College students, Black -- Psychology -- South Africa , College students, Black -- Attitudes -- South Africa , College students -- Psychology -- South Africa , Student protestors -- Attitudes -- South Africa , Student movements -- South Africa , Internet and activisim -- South Africa , Internet in political campaigns -- South Africa , Higher education and state -- South Africa
- Language: English
- Type: text , Thesis , Masters , MA
- Identifier: http://hdl.handle.net/10962/96668 , vital:31306
- Description: #FeesMustFall emerged at the end of 2015 after an announcement that tuitions would increase. The student protests occurred across higher education institutions within the country in which mass shutdowns were initiated, there was the presence of violence and the use of social media. The protests occurred in 2016 but experienced a shift in tone in terms of the violence present in the protests. The research sought to unpack how identity was constructed and performed through rights talk in regards to #FeesMustFall on social media. The methodology worked from a social constructionist perspective where the research consisted of a discursive psychological analytical approach to the texts presented. The discursive repertoires that were identified were: emotions repertoire; struggle repertoire; apartheid repertoire; racial repertoire; and rights repertoire. The subject positions revealed through the repertoires indicated that protesters and supporters constructed and performed their identity in particular ways. They were positioned as black; working class; victims who are enacting a sense of agency; denied their rights; have moral authority and are a parallel to the protesters under apartheid. The repertoire of struggle, racial and apartheid all link with each other. The rights repertoire is the foundation and the emotions repertoire is the tone of the student protests.
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The new Africans: a textual analysis of the construction of 'African-ness' in Chaz Maviyane-Davies' 1996 poster depictions of the Universal Declaration of Human Rights
- Authors: Garman, Brian Donald
- Date: 2013
- Subjects: Human rights , Posters , African perspective , Stereotypes , Black men , Maviyane-Davies, Chaz -- Criticism and interpretation , Universal Declaration of Human Rights -- Posters -- Research , Ethnicity -- Research -- Africa , Human rights -- Africa , Pan-Africanism
- Language: English
- Type: text , Thesis , Masters , MA
- Identifier: vital:3413 , http://hdl.handle.net/10962/d1001844
- Description: In 1996, Zimbabwean graphic designer Chaz Maviyane-Davies created a set of human rights posters which represent several articles of the Universal Declaration of Human Rights, from what he calls an “African perspective”. In this study I investigate how Maviyane-Davies has constructed ‘African-ness’ and probe what he refers to as the “alternative aesthetic” that he is trying to create. I use a visual social semiotic approach to examine the discourses he draws on to re-image and re-imagine Africa and Africans in a manner that contests the stereotypical representations found in political, news and economic discourses about Africa, paying particular attention to the ways he uses images of the body. My analysis of the posters shows how complex and difficult it can be to contest regimes of representation that work to fix racialised and derogatory meanings. In response to the pejorative stereotypes of the black body, Maviyane-Davies uses images of strong, healthy, and magnificent people (mostly men) to construct a more affirmative representation of Africa and Africans. Significantly, he draws on sports, touristic, traditional and hegemonic discourses of masculinity in an attempt to expand the complexity and range of possible representations of African-ness. In so doing he runs the risk of reproducing many of the stereotypes that sustain not only the racialised and gendered (masculinist) representations of Africa, but also a sentimentalisation and romanticisation of a place, a people and their traditions. Apart from women in prominent positions, other conspicuous absences from these images include white people and hegemonic references to Western modernity. I do not believe he is discarding whites and modernity as un-African, but is rejecting the naturalisation of whiteness as standing in for humanity, and particular icons of Western modernity as significations of ‘modernity’ itself
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- Authors: Garman, Brian Donald
- Date: 2013
- Subjects: Human rights , Posters , African perspective , Stereotypes , Black men , Maviyane-Davies, Chaz -- Criticism and interpretation , Universal Declaration of Human Rights -- Posters -- Research , Ethnicity -- Research -- Africa , Human rights -- Africa , Pan-Africanism
- Language: English
- Type: text , Thesis , Masters , MA
- Identifier: vital:3413 , http://hdl.handle.net/10962/d1001844
- Description: In 1996, Zimbabwean graphic designer Chaz Maviyane-Davies created a set of human rights posters which represent several articles of the Universal Declaration of Human Rights, from what he calls an “African perspective”. In this study I investigate how Maviyane-Davies has constructed ‘African-ness’ and probe what he refers to as the “alternative aesthetic” that he is trying to create. I use a visual social semiotic approach to examine the discourses he draws on to re-image and re-imagine Africa and Africans in a manner that contests the stereotypical representations found in political, news and economic discourses about Africa, paying particular attention to the ways he uses images of the body. My analysis of the posters shows how complex and difficult it can be to contest regimes of representation that work to fix racialised and derogatory meanings. In response to the pejorative stereotypes of the black body, Maviyane-Davies uses images of strong, healthy, and magnificent people (mostly men) to construct a more affirmative representation of Africa and Africans. Significantly, he draws on sports, touristic, traditional and hegemonic discourses of masculinity in an attempt to expand the complexity and range of possible representations of African-ness. In so doing he runs the risk of reproducing many of the stereotypes that sustain not only the racialised and gendered (masculinist) representations of Africa, but also a sentimentalisation and romanticisation of a place, a people and their traditions. Apart from women in prominent positions, other conspicuous absences from these images include white people and hegemonic references to Western modernity. I do not believe he is discarding whites and modernity as un-African, but is rejecting the naturalisation of whiteness as standing in for humanity, and particular icons of Western modernity as significations of ‘modernity’ itself
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Transnational civil society's ability to successfully influence state actors on human rights issues through international non-governmental organizations (INGOs) : a case study of the coalition to stop the use of child soldiers
- Authors: VerHage, Alicia
- Date: 2009
- Subjects: International Campaign to Ban Landmines , Convention on the Rights of the Child (1989 November 20) , Non-governmental organizations , Child soldiers , Children's rights , Human rights , Children (International law)
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2884 , http://hdl.handle.net/10962/d1015249
- Description: The international dilemma of child soldiers is a humanitarian concern throughout the world. The Coalition to Stop the Use of Child Soldiers (CSUCS) began in 1998 and is currently the leading collaborative movement to address the issue. However, because of its emphasis on a universal 'Straight 18' approach and support of the Optional Protocol of the Convention on the Rights of a Child (CRC), the CSUCS ignores contextual realities that affect the implementation ofthe international legislation and the development of norms concerning child soldiers. This research project will examine the current international nongovernmental organization (INGO) response to child soldiers- focusing on the CSCUS - and formulate suggestions for potential avenues to further INGO involvement with policies and projects. The argument is based on a neoliberal institutionalist platform that argues in favour ofiNGOs' ability to successfully influence actions taken by state actors to address human right issues. Highlighting the successful INGO influence on states during the International Campaign to Ban Landmines, I will present this example as a potential model for the Coalition to Stop the Use of Child Soldiers, and explore the feasibility of this model whilst making suggestions for more effective involvement of INGOs with regard to the issue of child soldiers.
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- Authors: VerHage, Alicia
- Date: 2009
- Subjects: International Campaign to Ban Landmines , Convention on the Rights of the Child (1989 November 20) , Non-governmental organizations , Child soldiers , Children's rights , Human rights , Children (International law)
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2884 , http://hdl.handle.net/10962/d1015249
- Description: The international dilemma of child soldiers is a humanitarian concern throughout the world. The Coalition to Stop the Use of Child Soldiers (CSUCS) began in 1998 and is currently the leading collaborative movement to address the issue. However, because of its emphasis on a universal 'Straight 18' approach and support of the Optional Protocol of the Convention on the Rights of a Child (CRC), the CSUCS ignores contextual realities that affect the implementation ofthe international legislation and the development of norms concerning child soldiers. This research project will examine the current international nongovernmental organization (INGO) response to child soldiers- focusing on the CSCUS - and formulate suggestions for potential avenues to further INGO involvement with policies and projects. The argument is based on a neoliberal institutionalist platform that argues in favour ofiNGOs' ability to successfully influence actions taken by state actors to address human right issues. Highlighting the successful INGO influence on states during the International Campaign to Ban Landmines, I will present this example as a potential model for the Coalition to Stop the Use of Child Soldiers, and explore the feasibility of this model whilst making suggestions for more effective involvement of INGOs with regard to the issue of child soldiers.
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A just culture : restoring justice towards a culture of human rights
- Authors: McConnell, Jesse
- Date: 2005
- Subjects: South Africa. Truth and Reconciliation Commission , Reconciliation , Restorative justice , Justice , Human rights , South Africa -- Politics and government -- 20th century
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2860 , http://hdl.handle.net/10962/d1007594 , South Africa. Truth and Reconciliation Commission , Reconciliation , Restorative justice , Justice , Human rights , South Africa -- Politics and government -- 20th century
- Description: This thesis seeks to investigate the possibility that the binary opposition between retributive and restorative forms of justice that structures the discourse on justice is unhelpful and unnecessary, particularly for societies seeking to extricate themselves from violent conflict and towards building peace and democracy. I shall argue for the importance of considering restorative justice as conceptually and historically prior to the possibility of retributive justice rather than the negation of one or the other, as well as advocate the potentially greater transformative power of the values of restorative justice which may provide a constructive alternative to retributive justice in the context of post-conflict peacebuilding.
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- Authors: McConnell, Jesse
- Date: 2005
- Subjects: South Africa. Truth and Reconciliation Commission , Reconciliation , Restorative justice , Justice , Human rights , South Africa -- Politics and government -- 20th century
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2860 , http://hdl.handle.net/10962/d1007594 , South Africa. Truth and Reconciliation Commission , Reconciliation , Restorative justice , Justice , Human rights , South Africa -- Politics and government -- 20th century
- Description: This thesis seeks to investigate the possibility that the binary opposition between retributive and restorative forms of justice that structures the discourse on justice is unhelpful and unnecessary, particularly for societies seeking to extricate themselves from violent conflict and towards building peace and democracy. I shall argue for the importance of considering restorative justice as conceptually and historically prior to the possibility of retributive justice rather than the negation of one or the other, as well as advocate the potentially greater transformative power of the values of restorative justice which may provide a constructive alternative to retributive justice in the context of post-conflict peacebuilding.
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An investigation into the structure and process of forgiveness following gross human rights violations
- Authors: Adonis, Cyril Kenneth
- Date: 1999
- Subjects: Human rights , Forgiveness -- South Africa , South Africa. Truth and Reconciliation Commission , Amnesty -- South Africa , Reconciliation
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2921 , http://hdl.handle.net/10962/d1002430 , Human rights , Forgiveness -- South Africa , South Africa. Truth and Reconciliation Commission , Amnesty -- South Africa , Reconciliation
- Description: This study focuses on the structure and process of forgiveness as experienced by individuals, from the East London and surrounding areas, who either suffered gross human rights violations or who are related to someone who suffered gross human rights violations during the Apartheid era. Those who participated in the study testified at the Truth and Reconciliation Commission and expressed forgiveness towards the perpetrators of the violations. The aims of the study were to reveal: the participants' structure cif forgiveness, i.e. how they define forgiveness; the process of forgiveness, i.e. the changes that took place from the time of the violation up until the participants forgave the perpetrators: and, the relation. if any. between the participants' structure and process of forgiveness. It is argued that mainstream Psychology has neglected to study forgiveness because the subject matter is incompatible with the natural scientific method. For this reason, the study was approached from a hermeneutical paradigm. This was motivated by its ability to explicate the meaning and content of phenomena. Unstructured qualitative interviews were conducted with the participants. Data was analyzed using a multi-layered process of progressively deeper interpretation, employing a reading guide technique. Results indicated that authentic forgiveness is an unconditional commitment on the part of victims and survivors to relate positively towards the perpetrators. The relationship should include non-bitterness, non-vengeance, unconditional love and respect for their human rights. Another significant dimension of the structure of forgiveness is the fact that the desire for the truth is not abandoned although forgiveness has taken place. Forgiveness also does not take away the effects of the violation. This means that one does not forget although forgiveness has been granted. Results further indicate that the forgiveness process is highly complex, individualized and not instantaneous. The individuals have to deal with various intrapersonal conflicts and anxieties as a result of the violation, before forgiveness is explored as an option, and before they can finally forgive. Significant interrelations between the structure and process of forgiveness were also identified.
- Full Text:
- Authors: Adonis, Cyril Kenneth
- Date: 1999
- Subjects: Human rights , Forgiveness -- South Africa , South Africa. Truth and Reconciliation Commission , Amnesty -- South Africa , Reconciliation
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2921 , http://hdl.handle.net/10962/d1002430 , Human rights , Forgiveness -- South Africa , South Africa. Truth and Reconciliation Commission , Amnesty -- South Africa , Reconciliation
- Description: This study focuses on the structure and process of forgiveness as experienced by individuals, from the East London and surrounding areas, who either suffered gross human rights violations or who are related to someone who suffered gross human rights violations during the Apartheid era. Those who participated in the study testified at the Truth and Reconciliation Commission and expressed forgiveness towards the perpetrators of the violations. The aims of the study were to reveal: the participants' structure cif forgiveness, i.e. how they define forgiveness; the process of forgiveness, i.e. the changes that took place from the time of the violation up until the participants forgave the perpetrators: and, the relation. if any. between the participants' structure and process of forgiveness. It is argued that mainstream Psychology has neglected to study forgiveness because the subject matter is incompatible with the natural scientific method. For this reason, the study was approached from a hermeneutical paradigm. This was motivated by its ability to explicate the meaning and content of phenomena. Unstructured qualitative interviews were conducted with the participants. Data was analyzed using a multi-layered process of progressively deeper interpretation, employing a reading guide technique. Results indicated that authentic forgiveness is an unconditional commitment on the part of victims and survivors to relate positively towards the perpetrators. The relationship should include non-bitterness, non-vengeance, unconditional love and respect for their human rights. Another significant dimension of the structure of forgiveness is the fact that the desire for the truth is not abandoned although forgiveness has taken place. Forgiveness also does not take away the effects of the violation. This means that one does not forget although forgiveness has been granted. Results further indicate that the forgiveness process is highly complex, individualized and not instantaneous. The individuals have to deal with various intrapersonal conflicts and anxieties as a result of the violation, before forgiveness is explored as an option, and before they can finally forgive. Significant interrelations between the structure and process of forgiveness were also identified.
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Human rights: an investigation into the importance of second generation rights
- Authors: Bentley, Kristina Anne
- Date: 1998
- Subjects: Human rights -- Philosophy , Human rights
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2759 , http://hdl.handle.net/10962/d1002969 , Human rights -- Philosophy , Human rights
- Description: This study examines the notion of universal human rights in the context of the importance of social and economic rights for the agency and dignity of human beings. It argues that the recognition of basic rights to what is necessary for physical well-being is essential to any adequate theory of human rights, and that rights of the civil and political variety depend on the recognition of social and economic rights if they are to be exercised. Therefore the secondary status which is usually accorded to social and economic rights results in an imbalanced ideal of human rights both in theory and in practice. This study is an attempt to place second generation rights in their proper context and to argue for them as human rights of equal status and importance. It focuses on the derivation of human rights in general, and shows that second generation rights may be accommodated within this structure. It further supports this position by showing that the categorical differences which are asserted to exist between first and second generation rights are based on a mistaken conception of positive and negative rights and duties, as well as an inadequate conception of liberty. The thesis shows that all rights generate a variety of duties, both positive and negative, and that an adequate theory of rights has to be able to accommodate the inevitability of conflicts of rights at the level of their enforcement. Consequently, this study argues there is no reason to give either class of right primary importance, as both first and second generation human rights are essential to the agency and dignity of a human being, and they are thus interdependent. Furthermore, the thesis shows that human rights can be balanced at the level of the obligations which they generate without compromising the deontological nature of such rights. This thesis argues that a theory of rights which is rooted in the liberal democratic notion of rights, such as that characterised by the choice theory of rights, is inadequate. It therefore argues that a benefit theory of rights must be adopted in order to accommodate conflicts of rights when they arise. The thesis argues that as such conflicts of rights are" most common in cases involving the assertion of social and economic rights, this balancing of rights is of special significance for the enforcement of second generation rights. Furthermore, this thesis argues for a theory of minimal interdependence of first and second generation rights, in order to accommodate the notion of first and second generation rights of equal status and importance, as well as to prevent an inflation of rights claims which would compromise the balancing of rights. It is argued that a reordering of values is necessary to take account of material well-being, as well as civil freedom, as both of these generate fundamental rights of equal status and importance.
- Full Text:
- Authors: Bentley, Kristina Anne
- Date: 1998
- Subjects: Human rights -- Philosophy , Human rights
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2759 , http://hdl.handle.net/10962/d1002969 , Human rights -- Philosophy , Human rights
- Description: This study examines the notion of universal human rights in the context of the importance of social and economic rights for the agency and dignity of human beings. It argues that the recognition of basic rights to what is necessary for physical well-being is essential to any adequate theory of human rights, and that rights of the civil and political variety depend on the recognition of social and economic rights if they are to be exercised. Therefore the secondary status which is usually accorded to social and economic rights results in an imbalanced ideal of human rights both in theory and in practice. This study is an attempt to place second generation rights in their proper context and to argue for them as human rights of equal status and importance. It focuses on the derivation of human rights in general, and shows that second generation rights may be accommodated within this structure. It further supports this position by showing that the categorical differences which are asserted to exist between first and second generation rights are based on a mistaken conception of positive and negative rights and duties, as well as an inadequate conception of liberty. The thesis shows that all rights generate a variety of duties, both positive and negative, and that an adequate theory of rights has to be able to accommodate the inevitability of conflicts of rights at the level of their enforcement. Consequently, this study argues there is no reason to give either class of right primary importance, as both first and second generation human rights are essential to the agency and dignity of a human being, and they are thus interdependent. Furthermore, the thesis shows that human rights can be balanced at the level of the obligations which they generate without compromising the deontological nature of such rights. This thesis argues that a theory of rights which is rooted in the liberal democratic notion of rights, such as that characterised by the choice theory of rights, is inadequate. It therefore argues that a benefit theory of rights must be adopted in order to accommodate conflicts of rights when they arise. The thesis argues that as such conflicts of rights are" most common in cases involving the assertion of social and economic rights, this balancing of rights is of special significance for the enforcement of second generation rights. Furthermore, this thesis argues for a theory of minimal interdependence of first and second generation rights, in order to accommodate the notion of first and second generation rights of equal status and importance, as well as to prevent an inflation of rights claims which would compromise the balancing of rights. It is argued that a reordering of values is necessary to take account of material well-being, as well as civil freedom, as both of these generate fundamental rights of equal status and importance.
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