METHODS OF HUMAN RIGHTS RESEARCH

Transcription

1 METHODS OF HUMAN RIGHTS RESEARCH

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3 METHODS OF HUMAN RIGHTS RESEARCH Edited by Fons COOMANS Fred GRÜNFELD Menno T. KAMMINGA Antwerp Oxford Portland

4 Distribution for the UK: Hart Publishing 16C Worcester Place Oxford OX1 2JW UK Tel.: Fax: Distribution for Switzerland and Germany: Schulthess Verlag Zwingliplatz 2 CH-8022 Zürich Switzerland Tel: Fax: Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave Suite 300 Portland, OR USA Tel.: (toll free) Tel.: Fax: info@isbs.com Distribution for other countries: Publishers Groenstraat 31 BE-2640 Mortsel Belgium Tel: Fax: Methods of Human Rights Research Fons Coomans, Fred Grünfeld and Menno T. Kamminga (eds.) Cover illustration: Danny Juchtmans 2009 Antwerp Oxford Portland ISBN D/2009/7849/65 NUR 828 No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.

5 TABLE OF CONTENTS A PRIMER FONS COOMANS, FRED GRÜNFELD and MENNO T. KAMMINGA Problems with Methods of Human Rights Research Some Suggestions...14 SOCIAL SCIENCE METHODS AND HUMAN RIGHTS TODD LANDMAN 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 JAN M. 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

6 Table of Contents 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 EVA BREMS 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 HATLA THELLE Introduction The Sources of Human Rights Research...95 vi

7 Table of Contents 3. Empowerment and Making Claims Two Different Contexts Evidence-Based Research: an Example of the Complexities Involved Conclusion MEASURE FOR MEASURE: UTILIZING LEGAL NORMS AND HEALTH DATA IN MEASURING THE RIGHT TO HEALTH DABNEY EVANS and MEGAN PRICE Introduction 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 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 vii

8 Table of Contents 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 TELLING TRUTH? THE METHODOLOGICAL CHALLENGES OF TRUTH COMMISSIONS PAUL GREADY 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 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 viii

9 Table of Contents Currency Presenting Research Results Conclusions TREATY INTERPRETATION AND THE SOCIAL SCIENCES KOEN DE FEYTER Introduction Multidisciplinarity in Treaty Interpretation The Awas Tingni Judgment Subsequent Case Law Lessons for Human Rights Research METHODS OF PHILOSOPHICAL RESEARCH ON HUMAN RIGHTS ANDREAS FOLLESDAL Introduction Amartya Sen 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 ix

10 Table of Contents About the Authors Subject Index x