International Human Rights Law Lecture 1

Nature of human rights

Rights that every individual possesses by virtue of their humanity, regardless of nationality

o Universal and inalienable

o Indivisible, interdependent, interrelated

Individuals as subjects of IL

o i.e. bearers of rights/duties under IL

o But not same as states

o Different subjects--- different rights/duties (Reparation for injuries)

Innovation

Away from solely state-based system on IL

o A counterweight to state power--- states duties towards individuals under IL

How do individuals acquire rights under IHRL?

Tension between voluntary and natural/communitarian sources of HRs

o Largely via consent of states--- voluntary law (e.g. treaties)

o But HRs said to pre-exist their legal formulation/adoption

o Possessed by virtue of one's humanity (regardless of govts)- natural law

o Increasingly said to reflect evolving standards of int'l community- communitarian law

Civil political rights (1st generation)

Rights the state cannot usurp

"Negative" rights (Freedom from interference)

oIndividual freedoms from government

o e.g. physical integrity rights (impingement on personal freedom)

Econ., social, and cultural rights (2nd generation)

Minimum material rights the state must provide

"Positive" rights (Require instiutions to take active steps to provide specific steps)

o Individual freedoms through govt action

group/collective rights

Inhere not in the individual but in a (often vulnerable) group

o e.g. minorities, indigenous people, persons with disabilities, self-determination, development, peace environment

o "Solidarity" rights (group rights)

o May or not be in the power of a govt to respect

International Human Rights Law

Legal standards protecting individual rights globally.

Moves treatment of individuals from domestic--- to international concern

o Not dependent on individual nationality

o Protection of HRs not limited to national jurisdiction

o Since most HR violations caused by States against own nationals--- redress mechanisms must be available outside national courts

o Started with UN Charter

o Every state has ratified a HR treaty-- acceptance of HRs as part of international legal system

o Not exclusive "domestic jurisdiction"

Western origins of universal human rights, but claims of univerasality

o Enlightenment philosophy

o e.g. Locke's "natural rights": life, liberty, property

o Early national legal instruments

o England : Magna Carta 1215 (due process), Habeas Corpus Act 1679 (no arbitrary detention, presumption of innocence), Bill of Rights 1689 (e.g. freedom of speech)

o France: Declaration of the Rights of Man (1789)

o US: Bill of Rights (1791)

US Declaration of Independence (1776): All men are created equal... unalienable rights

French Declaration of the Rights of Man and of the Citizen (1789):

o Rights applicable to all without exception, not only French citizens

o Quickly inspired women's rights

Cultural relativism

Different cultures may have different systems of rights

o Not "universal": current HRs do not reflect non-Western values

o Cultural imperialism?

o Similar to 19th c. "standard of civilization"

o e.g. Debate over "Asian values"

o Less individualistic, more collectivist (emphasize respect for authority and social harmony)

o Legitimate or just a cover for authoritartianism and HR violations

Universality in IL

Universality can largely be presumed

o Most cultures/religions: dignity of the individual + responsibility towards others

o Wide adherence to global HR instruments

o HR treaties, Universal Declaration of Human Rights, UN Charter, etc.

o Unanimous adoption of universality principle in UN (non-binding) declarations

o Vienna Declaration and Program of Action (1993)

o 1st par.: The universal nature of these rights and freedoms is beyond question (unanimous adoption)

o No real concession to the idea of

Vienna Declaration and Program of Action (1993)

1st par.: The universal nature of these rights and freedoms is beyond question (unanimous adoption)

No real concession to the idea of cultural relativism

o Acceptance of different interpretation or implementation of HRs, but not different "rights"

While HR violations are still common, states rarely claim a "right" to breach a HR

Anti-slavery movement Actions IL

1890 Brussels Conference Act

1926 Convention to Suppress the Slave Trade and Slavery

League of Nations

Convenant: No mention of human rights

o Racial equality, religous freedom--- discussed but rejected

o But clauses on women's and labor rights

ILO labor rights (e.g. freedom of association)

o Forced Labor Convention (1930)

Minority Treaties: protection of national minorities (Europe)

When did actual IHRL emerge?

Post WWII

UN Charter + 1948 Universal Declaration of Human Rights (UDHR)

UN Charter (Article 1)

Defines the purposes of the United Nations, including:

- To maintain international peace and security

- To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character

Hard fought battle to get this language adopted at all

o Key lobbying role: US NGOs

o Prompted by WWII, Nazi Germany, Holocaust

Chapter IX UN Charter

Universal respect for, and obeservance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or relegion

Note:

Universal respect

No direct HR obligations imposed on states (But Art. 58 says states must pledge "to take joint and seperate action" to achieve Art. 55 goals)

No definition/list of "human rights and fundamental freedoms" (Only 2 listed rights "self determination" and non discrimination- equal rights without distinction)

Art. 68 UN Charter

"The Economic and Social Council shall set up commissions in economic and social fields and fro the promotion of human rights"

o UN Commission on Human Rights (now Human Rights Council)

o Non binding declaration of HRs principles---1948 UDHR

o A set of binding treaty obligations

UDHR: nonbinding UNGA declaration (Res. 217A (III))

Soft law (UNGA resolution)

o But very influential (often referred as CIL)

Vote: 48 to o

o 8 abstentions: USSR + other E. Europeans, Saudi Arabia, South Africa

Contains a list of "human rights and fundamental freedoms

o 30 articles

International Bill of Rights

UDHR (1948), ICCPR (1966), ICESCR (1966)

International Covenant on Civil and Political Rights (1st gen rights and binding treaty) (General UN convention on HRs)

International Covenant on Economic, Social, and Cultural Rights (2nd gen. rights and binding treaty) (General UN Convention on HRs)

8 other binding treaties on specific issues

o Torture (CAT), racial discrimination (CERD), children (CRC), etc.

o Special treaty bodies to monitor compliance

o though no real enforcement mechanisms

Treaties and customary IHRL

While main sources of IHRL are treaties, certain HRs now clearly regarded as part of CIL

Domestic jurisdiction

States can no longer claim interference in "domestic" affairs when considering HRs

o When they approved the right of individuals to petition under an international procedure as a principle

Exhaustion of domestic remedies rule

Appears in all HR instruments

Priorities of rights

Possible derogations* in times of public emergency--- but not for all rights

Margin of appreciation doctrine

Lots of discretion to states

o Rationable: national courts are best positioned to judge the "exigencies" of a given situation

Non-derogable rights

rights that cannot be suspended for any reason, including at times of public emergency

Arbitrary deprivation of life, torture, slavery, retroactive penalty, freedom of religion

Derogable vs. non derogable rights

All major HR treaties allow possibility to (temporarily) derograte from certain HR obligations in case of "public emergency" threatening the life of a nation

Hierarchy of HRs?

Political debates over which HRs should be prioritized

e.g. Cold WarL ICCPR vs. ICESCR

e.g. US Sec of State Pompeo (2020): private property + religious freedom are "foremost" HRs

o Not, say, "gender rights" or "freedom of the press"--- pushback

Under conventional IHRL?

No clear legal hierarchy of HRs

o Beyond derogable vs. non-derogable

"Indivisible, interdependent, interrelated"

Under customary IHRL

jus cogens: peremptory norms

e.g. slavery--- states should face some consequences from engaging in it

Obligations/rights erga omnes ("towards all")

o Barcelona Traction case (ICJ, 1970)

States have a legal interests in their protection

o Interstate complaints

o e.g. genocide, slavery, racial discrimination

Treaties that the US signed but never ratified

ICESCR (1966)

CEDAW (Women's Rights)- with Sudan, Somalia, and Iran

CRC (Children's Rights)- only state!

Took 40 years to ratify the Genocide Convention, which it helped draft

Attached reservations to ICCPR (death penalty for children)

+ reservations in almost all cases: non-self executing clauses