METHODS OF HUMAN RIGHTS RESEARCH

Transcription

1 SUB Hamburg A/ METHODS OF HUMAN RIGHTS RESEARCH Edited by Fons COOMANS Fred GRUNFELD Menno T. KAMMINGA intersentia Antwerp - Oxford - Portland

2 TABLE OF CONTENTS A PRIMER FONS COOMANS, FRED GRUNFELD and MENNO T. KAMMINGA Problems with Methods of Human Rights Research Some Suggestions 14 SOCIAL SCIENCE METHODS AND HUMAN RIGHTS TODDLANDMAN Introduction Human Rights as an 'Object of Inquiry' Absence of Agreed Philosophical Foundations Contestation over the Meaning of Human Rights Applicability of the Social Sciences Methods in Social Science Dimensions of Social Science Research Epistemological Continuum Cross-National Generalisations and Comparative Methods Global Comparative Analysis Few-Country Comparisons Single-Country Studies Quantitative and Qualitative Evidence Conclusion: Methods Matter 41 REDEFINING NORMATIVE LEGAL SCIENCE: TOWARDS AN ARGUMENTATIVE DISCIPLINE JANM. SMITS Introduction From Internal to External Approaches of Legal Science Towards a Redefinition of Normative Legal Scholarship: the Homo Juridicus The Methodology of Normative Legal Scholarship Law as the Science of Competing Arguments 50 V

3 4.2. How Can the Better Arguments Be Found? Three Consequences Two Examples: Fundamental Rights in Relationships between Private Parties Conclusions: Legal Science as a Scholarly Discipline 57 HUMAN RIGHTS STUDIES: ON THE DANGERS OF LEGALISTIC ASSUMPTIONS DAVID P. FORSYTHE Introduction Legalistic Studies General Overview A Focus on Impact A Focus on Legal Obligation Conclusion 74 METHODS IN LEGAL HUMAN RIGHTS RESEARCH EVABREMS Introduction Research Question(s) and Method Research Questions Method Examining the Attitudes and Practice of Researchers Examining the Research Output Results of the Empirical Research Questionnaire Who? The Importance of Methodology Training and Guidance Methods Used Empirical vs. Normative Research Some Conclusions from the Questionnaire Examination of the Corpus Normative Conclusions 89 THE NEED FOR EVIDENCE-BASED HUMAN RIGHTS RESEARCH HANS-OTTO SANO and HATLATHELLE Introduction The Sources of Human Rights Research 95 vi

4 3. Empowerment and Making Claims Two Different Contexts Evidence-Based Research: an Example of the Complexities Involved Conclusion 108 MEASURE FOR MEASURE: UTILIZING LEGAL NORMS AND HEALTH DATA IN MEASURING THE RIGHT TO HEALTH DABNEY EVANS and MEGAN PRICE Ill 1. Introduction Ill 2. Global Health Inequalities Between States Establishment of Right to Health under International Human Rights Law A New Theoretical Model: The Synergistic Approach The International Convention on the Elimination of all Forms of Racial Discrimination Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental Health General Comment Applying the Synergistic Approach Barriers and Challenges to the Approach Conclusion and Implications 131 METHODS IN HEALTH AND HUMAN RIGHTS RESEARCH: TOWARDS A SPIRAL OF CO-LEARNING MARIA STUTTAFORD Introduction Health and Human Rights Review of Methods Used in Health and Human Rights Research Methods Used in Research into Developing Policy and Programmes Methods Used in Research into Analysing and Critique Government Performance Methods Used in Research Providing Evidence in Redress for those who Suffer Violations of their Rights Methods Used in Research into Supporting Advocacy and Civil Society Mobilization Reflections on Research Design and Methods Used to Explore Health and Human Rights Exploring Collective Rights to Public Health for Homeless People Towards Establishing a Learning Network to Advance Health Equity Through Human Rights Strategies 145 vii

5 4.3. Learning by Doing and Doing by Learning: A Civil Society Network to Realise the Right to Health Strengths and Weaknesses of Methods used in the Completed Research Projects A Learning Network to Facilitate a Spiral of Co-Learning Mixed Methods of Research in the Learning by Doing Network Conclusions 156 TELLING TRUTH? THE METHODOLOGICAL CHALLENGES OF TRUTH COMMISSIONS PAULGREADY Introduction Concepts and Methods Qualitative and Quantitative Methods Truth as Genre Legitimacy and Impacts Beyond Report 'Fetishization' Speaking Truth with and to Power History as Saviour? Conclusion 184 METHODOLOGICAL CHALLENGES IN COUNTRY OF ORIGIN RESEARCH MARCO FORMISANO Introduction A Definition of Country of Origin Information The Quasi-Judicial Character of Country of Origin Information and Its Role in Asylum Law The Three Elements of COI Research: the Observer, the Facts and the Research Instruments The Observer The Facts The Research Strategy Procedural Principles Impartiality and Objectivity Public vs. Anonymous Sources Assessing Sources Substantive Principles Relevance Accuracy Reliability 206 viii

6 Currency Presenting Research Results Conclusions 210 TREATY INTERPRETATION AND THE SOCIAL SCIENCES KOENDEFEYTER Introduction Multidisciplinarity in Treaty Interpretation The Awas TingniJudgment Subsequent Case Law Lessons for Human Rights Research 230 METHODS OF PHILOSOPHICAL RESEARCH ON HUMAN RIGHTS ANDREAS FOLLESDAL Introduction AmartyaSen Charles Beitz The Method of Reflective Equilibrium Three Main Features The Aim of Arriving at Reflective Equilibrium is Practical: To Attain Agreement on Specific Moral Issues The Starting Points of the Procedure are Non-Foundational Empirical and Normative 'Considered Judgments' The Theory Claims That There Is a rational Procedure by Which This Aim Sometimes Can Be Reached Elaboration Partial, Wide, Ideal Reflective Equilibrium The Method of Reflective Equilibrium Justification by Reflective Equilibrium Four Norms that Guide the Method of Reflective Equilibrium The Method of Reflective Equilibrium applied: Sen and Beitz On Sen: Why are Philosophical Human Rights Overriding? On Beitz: The Complexity of Object-dependent Theories and of Multiple Roles for Human Rights Conclusions 245 ix

7 Table of Contents About the Authors. Subject Index