Int. HR Law Flashcards
(22 cards)
Preamble of Universal Declaration of Human Rights (1948)
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world
Natural law approach to human rights
Human rights come from higher law, law that is higher than positive (man-made) law
Positivist tradition approach to human rights
Rights come from what positively enacted law (by humans)
Which tradition does the UDHR (and subsequent human rights documents) embody?
- The natural law approach is embodied in the UDHR’s preamble (“inherent dignity”, “inalienable”) but does not explicitly call upon divine law
- Some subsequent human rights documents, such as the Universal Islamic Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam, specifically ground rights in religion
– The Cairo declaration (1990 version) eg. bans conversion from Islam and limits rights of non-Muslims in some respects
Civil and political rights (human rights)
Right to vote, to free speech, to due process, etc.
- Protections for the person against the power of the state
- Generally but not always negative rights
Economic, social, and cultural rights (human rights)
Right to education, healthcare, livelihood, etc.
- Positive entitlements of a person which the state has to provide
- Generally but not always positive rights
What are civil and political rights and economic, social, and cultural rights often associated with?
- Civil and political rights are often predominantly associated with the developed world - the influence of the experience of totalitarianism
- Economic, social, and cultural rights are often predominantly associated with the developing world - greater emphasis on eg. development over traditional negative rights
- Some countries, eg. China have used their progress in the latter to justify their performance in the former
– eg. “when we become rich we will have elections, until then we should focus on economic development”
How were human rights traditionally seen? What changed this?
- Human rights were traditionally viewed as within the sovereign purview of states
- The Treaty of Versailles for the first time internationalizes human rights, albeit in a very limited way (for inhabitants of mandate territories, eg. and for certain minorities in eastern Europe) + labor rights through the ILO
How did WW2 shape the idea of human rights?
After the horrors of WW2, protection of human rights became an international priority
UN Charter (1945) on human rights
UN Charter (1945): “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”
When did the UDHR emerge, how did it affect human rights?
UDHR followed the UN Charter (1945) in 1948 and has been enormously influential for subsequent developments - but not binding
Focus on human rights since 1945
- Since 1945, there has been a proliferation of human rights declarations, treaties, instruments, etc. some of them binding, others symbolic
- There are also many international human rights bodies, some of which have the power to make binding decisions (eg. ECtHR)
- Virtually all international/regional human judicial rights bodies require for the exhaustion of local remedies before complaints can be taken up
Rights protection in the UN system characteristics
The United Nations System contains many mechanisms/bodies dedicated to the promotion of human rights, but virtually none of them has the power to bind states to follow their decisions
United Nations Human Rights Council functions + facts
Review members’ human rights record (universal periodic review), appoints special rapporteurs to report on particular issues, and accepts complaints against states from individuals
- Has been accused of bias against certain countries and of being unduly tolerant of some systemic human rights violators
- States can simply ignore the UNHRC’s activities reports, etc.
– Even though the UNHRC replaced the previous regime which was considered inefficient
Other UN bodies focused human rights (excluding UNHRC)
- Nine other UN bodies about specific areas of human rights established under various treaties
- Committee on the Elimination of Racial Discrimination, The Committee on the Elimination of Discrimination against Women, Committee against Torture, etc.
- The most these committees can do is to ask states nicely to stop doing what they are doing
How are regional rights protection regimes different from that of the UN?
The strongest (in terms of bindingness on states) international human rights protection regimes are to be found in regional arrangements
European Convention of Human Rights facts
- Drafted 1950
- Entry into force 1953
- Inspired by the UDHR, but with enforcement teeth (eventually)
- Under the aegis of the Council of Europe (not the EU!)
- Eventually led to the establishment of the European Court of Human Rights (ECtHR) based in Strasbourg, which has the power to make legally binding rulings against states
What does the European Convention of Human Rights guarantee?
- Guarantees a variety of rights, both civil and political and economic and social and cultural - some of which can be derogated in emergency situations
- Rights to life (Art 2), liberty and security (Art 5), privacy (Art 8), marriage (Art 12), among some examples
- Additional protocols, not all of which have been signed by all parties (eg. private property, against discrimination), reflecting the contentious nature of some rights and the difficulty of defining their scope
ECtHR’s court functions
- The ECtHR is an international court which hears complaints against states by individuals who feel aggravated under the Convention, after they exhausted domestic remedies
- Rulings are binding on states as a matter of international law
- Compliance is generally good
How the ECtHR allows states a margin of appreciation
The ECtHR is meant to allow states a margin of appreciation, in acknowledgement of the fact that the scope of rights is seldom entirely clear and that different states may reach different conclusions as to what a right requires
- ECtHR looks at state practice (needs not be uniform) and the nature of the right under ECtHR
- Examples:
– Abortion, no uniform state practice except perhaps when life of mother in danger
– Euthanasia, no right nor prohibition
– Criminalization of wearing of burqas
What is meant by the ECtHR’s “living instrument doctrine”?
- The ECtHR adopts a “living instrument doctrine” which allows itself to reinterpret ECHR provisions in light of new conditions
- This can be controversial as states may not have agreed to a certain right under the ECHR may find themselves suddenly bound by it via the expansion of the “living” instrument
- Example: Dudgeon v United Kingdom (1981)
– Prohibition of certain homosexual acts - right to private life
Bodies similar to the ECtHR and their characteristics
- Other similar bodies include the Inter-American Court of Human Rights (est. 1979) and the African Court of Human and People’s Rights (est. 1998; first judgement 2009)
- Cases in the former can only be submitted by state parties; of the latter, nine Africa countries allow for individual petition
