Contrasting idealism and realism, the author of this article attempts to secure at least one component of distributive justice, namely recognition of rights grounded on basic needs in terms of rights stricto sensu. In the case of realism, this objective is defeated beforehand for reasons that link the position with the doctrine of logical correlativity. By choosing this strategy, however, exponents of realism are doing themselves a disservice. The case against realism includes a criticism on the basis of its own premises, with a view to facilitating corrections of the analysis of the relevant subset of economic/social human rights. It will appear that the theoretical disintegration of realism boils down to one and the same problem: the absence of a distinction between rights-recognition and rights-protection.
Keywords: Claim-rights, justice, ethics, idealism, logic, ideology, economics, realism.
Climate change and impacts on the environment must be taken seriously as one of several causes of forced migration. So far there has been very little research on climate change and forced migration. One possible approach to the issue is that adopted in the case of the Guiding Principles on Internal Displacement, that is, to create a synthesis (and analogy) of existing international law in the form of principles. In any case, it would take a long time for new international instruments to be developed and come into force. Meanwhile, protection needs must also be addressed. This article attempts to show that investigating existing protection possibilities could prove useful and that there are several benefits to a Guiding Principles approach. Many of the forced migrants can probably be included in existing categories of protected persons, but we may need to increase their visibility and recognition within the categories. There is an urgent need to strengthen and develop existing protection mechanisms, particularly that of internally displaced persons. Human rights principles such as non-refoulement could also be used to extend at least basic protection. The human rights approach differs from general forced migration law by focusing on needs rather than cause. Rather than getting caught in the eternal debate about how forced or voluntary movement is, one could in the context of climate change and displacement focus more on the possibility and reasonability of return. Finally, arbitrary displacement is in itself a breach of law, and we need a broad approach to climate change adaptation, including strengthening and realising human rights.
Keywords: Climate change, migration, human rights, non-refoulement, refugee, IDP, stateless.
The paper deals with legal pluralism and multiculturalism from a gender perspective. The fact that the reformed Moroccan family law (Mudawwana) and the Spanish Family Code co-exist in Spain offer maltreated Moroccan women migrants a chance of a Spanish divorce under the Integrated Law against Gender Violence (2004), something which affects migrant womens chances of getting residence and work permits in their own names expeditiously . The permits are held by the women independently of their ex-husbands. A divorce that is valid in Morocco under the Mudawwana is often more difficult to achieve. In this paper I present a detailed case of a Moroccan womans marriage and divorce career during her five years of residence in Spain. I study her dealings with the Spanish legal and administrative authorities and her Moroccan familys efforts to get a divorce for their daughter in Casablanca. This example illustrates the many complex factors such as religious and secular ideologies and political pragmatism which together shape the terms under which Moroccan female migrants enjoy legal rights to divorce.
Keywords: Transnationalism, legal pluralism, Spain, Morocco, family code, gender, divorce.
The pretension of human rights to be universally valid irrespective of contingent historical and societal conditions is questionable. By their very definition, the rights imply a difference between man and society. The pre-modern concept of natural right (lex naturalis) made it reasonable to understand such rights as grounded in an external instance (God). Modern society, evolving from the 16th century, had to produce that reason by itself. The problem then, and now, is to find a societal quality that could ensure the unity of man and society that allowed an understanding of universal human rights as socially grounded. This article discusses the problems associated with the three dominant efforts to define this social quality. Based upon the sociological systems theory of Niklas Luhmann, the article concludes that todays global society makes any such effort virtually impossible. Instead, I propose grounding human rights in an acknowledgement of the difference between man and society. If we can accept such difference, we will see that human rights are about safeguarding the human environment.
Keywords: World society, natural right, human environment, contractualism, legalism, norms.