Paradigms of International Human Rights Law

Aaron X. Fellmeth is Professor of Law and the Willard H. Pedrick Distinguished Research Scholar at Sandra Day O'Connor College of Law, Arizona State University. He specializes in public international law, international human rights law, international legal theory, and international business transactions. He serves on the Board of Directors of the International Law Association (American Branch), where he is also Director of Studies and Chair of the International Human Rights Committee. He has published widely inter alia in public international law, international legal theory, and international human rights law. He authored a coursebook entitled Law of International Business Transactions (now in its second edition, 2011). He co-authored (with Maurice Horwitz) the Guide to Latin in International Law (Oxford, 2009).

ACKNOWLEDGMENTS

TABLE OF ABBREVIATIONS & CITATIONS

INTRODUCTION

PART I - HUMAN RIGHTS AND FUNDAMENTAL DUTIES

Chapter 1 - The Concept of Fundamental Duties
A. The Universal Duties Movement
1. Individual Duties
2. Corporate Duties
B. Five Classes of Beneficiaries of Moral Duties: A Typology
1. Duties Toward Other Individuals
2. Duties Toward Discrete Groups
3. Duties Toward Humankind as a Whole
4. Duties Toward Oneself
5. Ecological Duties
C. Conclusion

Chapter 2 - Duties and Rights as Alternative Value Paradigms
A. Universal Human Duties as a Legal Concept
1. Why Individual Duties?
2. Objections to Individual Duties under IHRL
3. Summary
B. Corporate Human Rights Duties as a Legal Concept
C. State Fundamental Duties as an Alternative to Individual Human Rights
1. Tonal Connotations of Rights and Duties Paradigms
2. Identification of the Relevant Duty Holder and Extent of Its Duties
3. Ascertainment of Interests of the Right Holder and Right Claiming

PART II -NONDISCRIMINATION AND SUBSTANTIVE RIGHT CLAIMING PARADIGMS

Chapter 3 - Nondiscrimination as a Claiming Paradigm
A. Two Methods of Value Protection
B. The International Legal Definition of Discrimination
1. Similar Situations
2. Legitimate Aim
3. Proportionality
C. Contextual Factors in Discrimination Analysis
1. Prohibited Grounds
2. The Protected Interest
3. The Individual and Social Consequences of Discrimination
4. Source of the Threat
5. Intention to Discriminate
D. Rationalizing Nondiscrimination Doctrine
1. Prohibited Grounds
2. Interests Protected
3. Public and Private Discriminators
4. Intention to Discriminate
Chapter 4 - Interchangeability and Complementarity of Substantive and Nondiscrimination Paradigms
A. The Extent and Limits of Equivalence
1. General Substitutability
2. Limits on Substitutability
3. The Ius Cogens Question
4. Group Rights and Discrimination
B. Legal Implications and Systemic Consequences of the Choice of Paradigms
1. The Substantive Rights Claiming Paradigm
2. The Discrimination Claiming Paradigm
C. Complementarity of Nondiscrimination and Substantive Rights Claims

PART III - NEGATIVE AND POSITIVE HUMAN RIGHTS

Chapter 5 - Are Negative and Positive Distinct and Meaningful Categories?
A. The Conventional Distinction Between Negative and Positive Rights
1. Common Definitions
2. The Basis for the Negative and Positive Distinction
B. What Makes a Right Negative?
C. Can There Even Be Negative Rights?
D. The Concept of "Basic" Positive Rights

Chapter 6 - The Legal Consequences of Negative and Positive Paradigms
A. The Scope of Negative and Positive Rights
1. Negative and Positive as Non-Opposites
2. Nonuniformity in the Strength and Scope of Rights within Categories
3. Pseudo-Positive Rights
B. Complementary Framing
C. Ambiguously Framed Rights

Chapter 7 - Structural Implications of Negative and Positive Paradigms
A. Positive Rights and Economic Development
B. Is There a Negative Duty to Renounce Benefits from Injustice?
C. Are Positive Rights Generally Desirable?
1. Ethics and Positive Rights
2. Positive Rights as a Practical Concept

Epilogue

Index