Lecture 10: International human rights law

Question 1

Where do human rights come from? Natural law vs. positivism

Answer 1

Natural law approach: human rights come from higher law, a law higher than positive (man-made) law

Positivism: rights come from what positively enacted law (by humans)

Question 2

The natural law approach to human rights is embodied in

Answer 2

The Universal Declaration of Human Rights’ preamble (1948), although it does not specifically call upon divine law

Question 3

The main distinction of human rights in IL

Answer 3

Civil and political rights: right to vote, free speech, due process etc. (generally negative rights)

Economic, social, and cultural rights: right to education, healthcare, livelihood etc. (generally positive rights)

Question 4

What kind of human rights are usually associated with the developed vs. developing world?

Answer 4

Civil and political rights are often predominantly associated with the developed world, because of the influence of experiencing totalitarianism

Economic, social, and cultural rights are often predominantly associated with the developing world (placing emphasis on development over traditional negative rights, e.g. focus on having enough food to eat at the expense of civil and political rights)

Question 5

Historically, human rights were viewed as…

Answer 5

Within the sovereign purview of states - they could do what they wanted

Question 6

Which treaty internationalized human rights for the first time?

Answer 6

The Treaty of Versailles: laid out some rights for inhabitants of mandate territories and certain minorities in Eastern Europe + labor rights through the ILO

Question 7

When did human rights become an international priority?

Answer 7

After the horrors of WW2

Question 8

Are UNHR findings binding?

Answer 8

No (has no court and not valid in most domestic courts), but highly influential

Question 9

Has UNHR reached status of customary IL?

Answer 9

No, because state practice shows that it is not enforceablw

Question 10

Since 1945, human rights have

Answer 10

Proliferated, with human rights declarations, treaties, instruments - some of them binding

Question 11

Virtually all international and regional judicial human rights bodies require for this before complaints can be taken up

Answer 11

The exhaustion of local remidies

Question 12

Are the UN systems for promoting human rights binding?

Answer 12

No, they are all mostly symbolic and can only advice and condemn, with the exception of UNSC in cases of genocide and very grave crimes

Question 13

What 3 things does the UN Human Rights Council do?

Answer 13

1. Reviews members’ human rights record (universal periodic review)
2. Appoints special rapporteurs to report on certain issues
3. Accepts complaints against states from individuals (if local remedies exhausted)

Question 14

What has the UNHRC been accused of?

Answer 14

Bias against certain countries and of being unduly tolerant of some systemic human rights violators

E.g. been accused of bias against Israel, while lenient on North Korea, China, and Saudi Arabia

Question 15

Are UNHRC reports binding?

Answer 15

No

Question 16

Name 3 of the 9 other UN human rights bodies

Answer 16

1. Committee on the Elimination of Racial Discrimination
2. The Committee on the Elimination of Discrimination against Women
3. Committee against Torture

Question 17

UN treaties usually requires that states

Answer 17

Change their own domestic laws in accordance with the treaty - but not really enforced

Question 18

European Convention of Human Rights - 4 points

Answer 18

1. Drafted in 1950, entered into force 1953
2. Inspired by UNHR but with enforcement (eventually)
3. Under aegis of Council of Europe (not EU!)
4. Eventually led to the establishment of the European Court of Human Rights

Question 19

European Court of Human Rights (ECtHR) - 5 points about how it works

Answer 19

1. Is an international court that can make legally binding rulings against states
2. Receives individual complaints
3. Most member states have legislation that automatically translates their rulings into national law
4. Every member has a judge, regardless of population size
5. Compliance generally good

Question 20

Content of the European Convention on Human Rights - 2 points

Answer 20

1. Guarantees a variety of rights, both civil and political, and economic, social, and cultural, e.g. right to life, liberty and security, privacy, marriage
2. Additional protocols (that haven’t been signed by all parties) contain legislation on private property, against discrimination etc.

Question 21

Two central doctrines to ECtHR

Answer 21

1. Margin of appreciation
2. Living instrument

Question 22

ECtHR: Margin of appreciation

Answer 22

Rulings can mean different things in different national contexts, so even if rights are universal they can be implemented differently with a minimum of the right that must be implemented

Question 23

If no consensus or strong disputes between states, the ECtHR will usually…

Answer 23

Allow states to do what they want

Question 24

ECtHR: Living instrument doctrine

Answer 24

Allows itself to reinterpret ECHR provisions in light of new conditions

Can be controversial as states which may not have agreed to a certain right under the ECHR may find themselves suddenly bound by it

Example: Dudgeon v. United Kingdom on prohibition of homosexual acts argued as right to private life

Question 25

Name 2 other regional bodies of human rights

Answer 25

1. Inter-American Court of Human Rights (state party submissions)
2. African Court of Human and Peoples’ Rights (9/50ish countries allow individual complaints)