L10 - int'l human rights law Flashcards
(8 cards)
exam
30 MCQ = 40%
3 short questions = 60%
- 3/5
- UN General Assembly, Vienna Convention, Customary IL will be in list, pick them and write about their significance for international law = say what they are + tell something interesting about them (show you’ve done the reading, refer to the reading is a plus, if you can only describe it you get less points but will still pass)
- one page, single space . no minimum or maximum. to show you deserve a high grade useful to use more words
you’ll be fine
where do human rights come from?
“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”
- preamble, Universal Declaration of Human Rights (1948)
- inalienable: you can’t give/sell them away
Natural law approach: human rights come from higher law, law that is higher than positive (man-made law)
Positivist tradition: rights come from what positively enacted law (by humans)
- you only have what humans give you (and which they can take away)
The natural law approach is embodied in the UDHR’s preamble (“inherent dignity”, “inalienable”), but does not explicitly call upon divine law
- sees human rights as natural/inherent
- does not refer to divinity, bc it was seen as universal (and there is not one religion -> need language everyone can get behind regardless of their religion)
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) e.g. bans conversion from Islam and limits rights of non-Muslims in some respects
- so there are declarations of human rights grounded in (divine considerations), but not the universal ones
is the idea of inherent, universal rights inherently theological?
there is a good case to make for this: how do you justify universal rights if you are a positive theorists, that law has many sources and can be taken away
main types of human rights (next to divine human rights as a subject)
civil and political rights
and economic, social and cultural rights
civil and political 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 (what states can’t do: e.g. can’t be arrested when x)
economic, social, and cultural rights
= right to education, healthcare, livelihood, etc. - positive entitlements of a person which the state has to provide
- generally, but not always positive rights (e.g. you have a right to x)
civil and political rights are often predominantly associated with the developed/western world - the influence of the experience of totalitarianism (Hitler)
Economic, social, and cultural rights are often predominantly associated with the developing world—greater emphasis on e.g. development over traditional negative rights
Some countries, e.g. China have used their progress in the latter to justify their performance in the former
- says it is doing good on human rights, bc it is doing good on economic rights (provision houses etc.)
history
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, e.g. and for certain minorities in eastern Europe) + labour rights through the IL
- labour rights for the first time international (Int’l Labour Organization)
- awareness certain issues should be international
After the horrors of the Second World War, protection of human rights became an international priority
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”
UDHR followed in 1948, and has been enormously influential for subsequent developments—but not binding
- but very influential as statement of common aspirations of humanity
Since 1945, there has been a proliferation of human rights declarations, treaties, instruments, etc. some of them binding, others symbolic
- an industry of human rights developed
- remember a lot of it is not legally binding, or has very limited legal force
There are also many international human rights bodies, some of which have the power to make binding decisions (e.g. ECtHR)
Virtually all international/regional human judicial rights bodies require for the EXHAUSTION OF LOCAL REMEDIES before complaints can be taken up
- i.e. first in the country which you think is violating human rights, have to go through their system. only when that doesn;t work, you can go to international options
rights protection - the UN system
(the most famous one, but not the most important one in practice)
The UN 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 decision (rely on moral power, which only goes that far)
UNHRC = UN Human Rights Council:
- reviews members’ human rights record (universal periodic review (every 5y))
- appoints special rapporteurs to report on particular issues (academics, aren’t paid anything, have no power to do anything, except they can complain)
- accepts complains against states from individuals (if you have exhausted legal system of your country)
- Has been accused of bias against certain countries (Israel) and of being unduly tolerant of some systemic human rights violators (Saudi Arabia, North Korea, China, Iran etc.)
- States can simply ignore the UNHRC’s activities, reports, etc
!!none of this is actually binding on anyone + most of what they do is ignored by states
9 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.
- diff subject areas
- none of them have any real power
the most these committees can do is to ask states nicely to stop doing what they are doing (they publish reports)
rights protection - regional arrangements
The strongest (in terms of bindingness on states) international human rights protection regimes are to be found in regional arrangement
- established on treaties + binding on states = very few international ones have this
- domestic systems tend to be the most effective
- it is easier to accept things when you are like-minded
European Convention on Human Rights + European Court of Human Rights
other similar bodies include the Inter-American Court of Human Rights (est. 1979) and the African Court on Human and Peoples’ Rights (est. 1998; first judgment 2009)
- less effective in practice
- People’s rights tend to be associated to group rights (rather than individual rights)
Cases in the former (Inter-American Court of Human Rights) can only be submitted by state parties; of the latter, some African countries allow for individual petition (as person you can go to the court, in practice not used very much)
rights protection - regional arrangements
European Convention on Human Rights
European Convention of Human Rights (drafter 1950; entry into force 1953) —inspired by the UDHR, but with enforcement mechanisms (eventually)
Under the aegis of the Council of Europe (not the EU!)
- EU court is in Luxembourg, not Strasbourg
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
Guarantees a variety of rights, both civil and political and economic and social and cultural—some of which can be derogated in emergency situations
- Right to—life (Art 2), liberty and security (Art 5), privacy (Art 8), marriage (Art 12), among some examples
- additional protocols, some optional, some mandatory (e.g. one that makes jurisdiction mandatory (was optional before))
Additional protocols, not all of which have been signed by all parties (e.g. private property, against discrimination), reflecting the contentious nature of some rights and the difficulty in defining their scope
- some additional protocols are mandatory (e.g. one that makes jurisdiction mandatory)
- e.g. right to life: capital punishment allowed provided there was a reasonably fair trial, now not anymore (no death penalty)
- e.g. abortion (is that part of right of life) - before 1990s was not allowed, 1990s: abortion allowed in the first trimester = controversial
- point: very obviously seeming human rights can actually be controversial when investigating how they actually work in complex/practical situations
European Court of Human Rights
ECtHR
based in Strasbourg, which has the power to make legally binding rulings against states
The ECtHR is an international court which hears complains 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
(Council of Ministers responsible for enforcement)
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
- it should allow some leeway, wiggle room for determining the scope of rights (e.g. right of free speech Germany vs banning extreme parties)
- core in how they make their rulings
- because reasonable people can debate about where the lines should be drawn
- but limits, e.g. death penalty, = when the text is really clear (but it usually isn’t)
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)
The ECtHR adopts a “living instrument doctrine” -> allows itself to reinterpret ECHR provisions in light of new conditions
This can be controversial as states which 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
- can develop to include rights that states had not foreseen when they signed the ECHR
Example: Dudgeon v United Kingdom (1981) on prohibition of certain homosexual acts—right to private life
- 1940s no one thought it could be used this way, but now culture more open
- Convention can be amended by judges, to keep it up to date = if you read these and these rights together, you see there is this right
