lecture 3 - human rights Flashcards
(25 cards)
What are human rights often labeled as?
Having a special label/character.
Human rights differ from other branches of law by involving individuals directly rather than solely focusing on states.
What are the three types of obligations in international human rights law?
- Respect
- Protect
- Fulfil
What does the obligation to ‘respect’ entail?
in int human rights law
Negative obligation that results in a violation of a given right.
Example: State officials must not forcibly evict people from public housing.
What does the obligation to ‘protect’ involve?
in int human rights law
Positive obligation to protect individuals from harm committed by others.
Example: Protect individuals from domestic violence.
What does the obligation to ‘fulfil’ require?
in int human rights law
Positive obligation to take proactive steps towards the full realization of the right.
Example: Provide training to police officers to prevent acts of torture.
What are absolute rights?
Rights that cannot be limited.
Examples: Slavery, genocide, certain aspects of freedom of expression.
What are permissible limitations on rights?
- Prescribed by law
- Legitimate aim
- Necessary in a democratic society
- Proportionality
so when human rights can be limited, as opposed with absolute rights
What are the two categories of rights?
- Civil and political rights
- Social, economic and cultural rights
What is Article 2(1) of the ISESCR related to?
Obligations regarding economic, social and cultural rights.
What is Article 2(1) of the ICCPR related to?
Obligations regarding civil and political rights.
How are civil and political rights traditionally viewed?
As western rights protecting individuals against the state.
What are first generation rights?
Civil and political rights.
What are second generation rights?
Economic, social and cultural rights favored by the eastern bloc and now the global south.
What do second generation rights focus on?
- Positive obligations
- Questions of resource allocation
favored by the eastern bloc and now the global south
civil and political human rights
Traditionally seen as western rights (protecting the individuals against the state)
- first generation rights
Focus on negative obligaitons
Stricter/more absolute obligaitons
Genaraly involves fewer question of resource allocation
Genaraly invilves fewer question of resource allocation
economic, social and cultural rights
Second generation
- favoured by the eastern bloc and now global south
Focusses on positive obligation
Wide margin of apprecation
Often involves questions of resouce allocation
Extraterritorial application
What are core obligations (CO)?
CESCR, General comment 3
Obligations to ensure the core of a right, essential for the right to have meaning.
They are prioritised obligations, but sometimes states can’t comply with them because they lack resources
- States must show it has done everything in its power to comply
There are also obligations of immediate effect ➞ e.g. non-discrimination and states also are under the obligation to take steps (move towards the realisation of human rights
Can retrogressive measures be justified?
Retrogressive measures = going steps in the opposite direction (so taking steps back, to backtrack these rights
Yes, but they are more difficult to justify with a strong presumption against them.
What are arguments against adjudicating ESC rights by courts?
- Policy aims (some say they aren’t rights as such but more political, so it should only be for the state to decide)
- Anti-democratic implications (because you have judged decide on what the legislator should decide upon)
- Vague, so how could you determine wether there is a violation…
- State sovereignty
- Capacity/expertice (judges or courts are knowlegdable, but don’t know how things work in practice)
What are arguments in fovor of adjucating ESC rights by courts?
- Overlap with civil and political rights
- Recognition in legal provisions
- Margin of appreciation/discretion
- Practice
What is the right to a healthy environment?
A legal provision recognized in various international treaties.
Examples include Article 24 of the ACHPR and Article 11 of the San Salvador Protocol.
Article 24(2)(c) Convention on the Rights of the Child (1989)
What was the significance of the case Billy and others v Australia?
It involved an indigenous minority group affected by climate change and raised issues of state obligations.
- Climate change causes flooding and erosion, and destroys traditional food sources
What were the authors’ arguments in Billy and others v Australia?
- Australia failed to adopt adaptation measures (to protect against the impact of climate change)
- Australia failed to adopt mitigation measures (to reduce greenhouse gas emissions)
- Violation of Article 6, 17, 27, and 24 ICCPR
What was the Committee’s view on Article 6 (right to life) in the case?
in Billy and others v Australia
No violation found as authors did not face adverse health impacts.
- The islands will become uninhabitable in 10 to 15 years, but in that time Australia could take adaptation measures or relocate the Torres Strait Islanders
