POLI 369 (lecture 3+ readings)

AfCHPR

African Commission of Human and Peoples' Rights.

Interdependence Principle

The concept that civil and political rights (CP) and economic, social, and cultural rights (ESC) are interdependent and mutually reinforcing.

Habeas Corpus

A legal remedy that requires a person under arrest to be brought before a judge, ensuring the legality of the detention.

Intersectionality ( Kimberle Crenshaw)

The analytical framework focusing on how different categories such as race, gender, and ethnicity interact and affect individuals' experiences.

Permeability

The concept referring to the interaction and overlap between ESC and CP rights, as proposed by Craig Scott.

Optional Protocol to the ICESCR

A treaty allowing individuals to file complaints regarding violations of economic, social, and cultural rights, adopted in May 2013.

Integration Approach

A method of litigation that advocates for ESC rights by framing them within the context of civil and political rights.

Indirect Approach

Using due process guarantees and prohibitions of discrimination to advocate for economic, social, and cultural rights.

Four Freedoms

Franklin D. Roosevelt's vision of human rights: Freedom from want, freedom from fear, freedom of speech, and freedom of belief.

Separated Rights

The distinction made during the Cold War between civil and political rights and economic, social, and cultural rights.

Judicial Justiciability

The ability of a court to adjudicate whether a particular right can be legally enforced.

Realpolitik

A system of politics based on practical and material factors over moral or ideological considerations.

UDHR

Universal Declaration of Human Rights, adopted in 1948, outlining fundamental human rights to be universally protected.

Negative Rights

Rights that require others (typically the state) to abstain from interfering with individual actions (e.g., freedom from torture).

Positive Rights

Rights that require action and intervention from the state to provide for economic and social needs (e.g., right to education).

Soft Law

Non-binding agreements or declarations that create norms or standards but do not have legal force.

Hard Law

Binding legal obligations under international law, such as treaties.

Justiciable

Capable of being decided by a court; having legal standing.

Marginalization

The social process of becoming or being made less important or relegated to a secondary position.

Collective Rights

Rights held by a group rather than by its individual members, often emphasized in ESC rights.

Social Justice

The view that everyone deserves equal economic, political, and social rights and opportunities.

Affirmative Action

Policies that take factors like race or sex into account to benefit an underrepresented group in areas like education and employment.

Land Restitution

The return of confiscated land to individuals or communities, often seen as a form of reparational justice.

Covenants

Formal agreements or treaties, especially in the context of human rights, referring to the ICCPR and ICESCR.

Vienna Convention on the Law of Treaties

A treaty concerning the international law on treaties between states; identifies the rules for creating and interpreting treaties.

Directive Principles of State Policy

Guidelines for framing laws, aimed at establishing social and economic democracy in India.

Life Project

An interpretative concept by the Inter-American Court of Human Rights that includes the right to live with dignity, linking ESC rights and CP rights.

Complaint Procedure

A process established for individuals to report violations of their rights, specifically referring to the Optional Protocol to the ICESCR.

The Right to Property – A Missing CP Right

The right to property was excluded from the ICCPR and ICESCR due to Cold War ideological conflicts.

Human Rights Committee (HRCttee) and Property Rights

The HRCttee has refused to handle property-related cases because the right to property has no clear legal basis in the ICCPR.

Status of Right to Property in UDHR (1948)

In the UDHR, the right to property was only an aspirational norm without an enforceable legal framework.

Regional Courts and Property Rights

Regional courts have been crucial in defining property rights because international treaties did not explicitly define them.

Linking Property Rights to ESC Rights

Courts have linked property rights to ESC rights through rights such as food, housing, and social security.

CESCR's Role in Property Rights

The CESCR may use regional case law to formally recognize property rights as an ESC right.

Intersectionality and Reproductive Rights

Abortion is traditionally framed in human rights discourse as a civil rights issue (liberty, privacy, and bodily autonomy).

Intersectionality and Reproductive Health

ESC rights intersect with reproductive rights through rights to health, bodily integrity, and life, preventing maternal deaths.

CESCR and Abortion Rights Expansion

The CESCR might expand abortion rights in the future by framing them as ESC rights linked to health and bodily integrity.

State Obligations: CP vs. ESC Rights

CP rights traditionally require state inaction, while ESC rights require state action.

Intersectionality in CP Rights

States must actively protect CP rights, not just refrain from violating them.

Expanding CP Rights Example - positive and negtaive aspects of expansion

An example is that the state must not only avoid restricting free speech but also protect journalists from attacks.

Right Not to Be Tortured Obligations

Associated obligations are negative: states must not engage in torture; positive: states must prevent and investigate torture.

Intersectionality in Torture Prevention

Intersectionality helps in torture prevention by addressing root causes linked to ESC rights.

Resistance to ESC Rights Recognition

Some governments resist recognizing ESC rights because they see them as too expensive or as socialist policies.

Intersectionality in Rights De-Categorization

Intersectionality helps in de-categorizing rights by showing how CP and ESC rights are interdependent.

Right to Life as Fundamental

The right to life is considered fundamental as it serves as an 'existence guarantee' for all other rights.

Indian Supreme Court and Right to Life expansion

The Indian Supreme Court has expanded the right to life to include ESC rights like food, education, and healthcare.

Case Example: Right to Food

In People’s Union for Civil Liberties v. Union of India (2001), the right to food was enforced by the Indian Supreme Court.

Queue Jumping in ESC Rights Litigation

'Queue jumping' refers to wealthier groups framing their claims as life issues to gain priority in court.

Competing Rights Case Example (bombay)

An example is Bombay Environmental Action Group v. A.R. Bharati, concerning the right to housing vs. environmental protection.

Right to Life Limitations

The right to life is not infinite; courts must balance it against other legal rights.

Inter-American Court of Human Rights and Life Project

The 'life project' approach interprets the right to life as including dignity and access to essential services.

Xákmok Kásek Case

In Xákmok Kásek Indigenous Community v. Paraguay (2010), the court ruled that Paraguay violated the community’s right to life.

Obligations of States Under Right to Life

States have negative obligations (no arbitrary deprivation of life) and positive obligations (protecting life through healthcare, food access).

ECtHR State Obligations Approach

The ECtHR recognizes both negative and positive obligations within state obligations.

Significance of Cyprus v. Turkey

In Cyprus v. Turkey, the denial of healthcare was ruled as a violation of the right to life.

ECtHR and International Norms

The ECtHR incorporates evolving human rights standards to guide its rulings.

HRCttee Acknowledging ESC Rights

The HRCttee has gradually acknowledged ESC rights by addressing issues like infant mortality and food security.

Importance of Direct ESC Rights Adjudication

Direct adjudication of ESC rights is important to establish them as fully enforceable rights.

Reinterpreting Property Rights Through Intersectionality

Property rights are being reinterpreted through intersectionality as a tool to protect ESC rights.

Ruling in Mellacher and Others v. Austria

The ruling established that states can regulate rent prices to ensure affordable housing.

Expanding Property Rights for Indigenous Communities

Human rights courts have expanded property rights for Indigenous communities by recognizing communal and ancestral land ownership.

Significance of Awas Tingni v. Nicaragua

This case established that states must protect Indigenous land rights.

Yakye Axa v. Paraguay Case Outcome

The case demonstrated that denying land access can violate both property and right to life protections.

Endorois v. Kenya Intervention

The ruling affirmed that Kenya violated the Endorois community’s property rights by evicting them from ancestral land.

Impact of Endorois Ruling

The ruling affirmed communal property as a distinct category and required repar

Impact of World War II on Human Rights World War II highlighted

the insufficiency of individual protection under international law, leading to the creation of human rights focused on ensuring that individuals receive adequate legal protection.

international law historically focused on

states and state relations

Why are these sources cited in a statute of an international court

These are valid and legal sources- as a court u draw on the sources and this is a good place to articulate sources

Instructive Provision for Main Sources of International Law

Article 38 of the ICJ Statute outlines the main sources of international law, including international treaties, customary international law, general principles of law recognized by civilized nations, and judicial decisions and teachings of the most highly qualified publicists.

Sources of International Law in article 38 i of icjstatute

The primary sources identified in Article 38 include international covenants and treaties,
international custom,
general principles of law recognized by nations,
judicial decisions, and
teachings of highly placed publicists as subsidiary means of determining rules of law.

Primary Sources of International Law

The primary sources of international law include treaties, customary law, and general principles of law recognized by civilized nations.

Subsidiary Sources of International Law

Subsidiary sources refer to judicial decisions and scholarly writings, used when specific rules cannot be found in primary sources.

Role of Subsidiary Sources

Subsidiary sources help interpret and apply international law when primary sources are insufficient.

What major human rights document was adopted by the UNGA in the immediate post-war period?

The Universal Declaration of Human Rights (UNDHR).

What did states aim to do with the obligations in the UNDHR after its adoption?

Strengthen these obligations through an international treaty.

What was the 'International Bill of Rights'?

A collection of rights and laws intended to codify human rights.

What made it difficult to reach an agreement on a single treaty during the post-war period?

Cold War dynamics.

What resolution did states reach regarding human rights treaties?

They decided to break the treaty into two basic international treaties.

What are the two basic international treaties derived from the International Bill of Rights?

ICCPR - International Covenant on Civil and Political Rights and ICESCR - International Covenant on Economic, Social and Cultural Rights.

What is the ICCPR, and which nations favored it?

The International Covenant on Civil and Political Rights, favored by Western nations for its libertarian and liberal view.

Why did Western nations support the ICCPR?

It aligns with their libertarian history and emphasizes negative rights, including fundamental liberties.

Who played a major role in drafting the ICCPR?

The United States, with Eleanor Roosevelt as a key figure.

What is the ICESCR, and who favored it?

The International Covenant on Economic, Social, and Cultural Rights (ICESCR), favored by the Eastern bloc and states with a socialist conception of rights.

What type of rights does the ICESCR emphasize?

Collective and communitarian rights, such as the right to housing, a healthy environment, and free education.

Why has the United States not ratified the ICESCR?

It increases state interference and does not align with the classical liberal tradition of international law.

How does the ICESCR differ from the ICCPR in terms of rights?

The ICESCR focuses on positive rights (state obligations to provide), while the ICCPR focuses on negative rights (freedom from interference).

Why are regional human rights treaties important?

Regional bodies may sometimes be more accessible and practical for addressing human rights concerns, depending on their jurisdiction and enforcement capabilities.

What is the most powerful regional human rights tribunal, and which treaty supports it?

The European Court of Human Rights, supported by the European Convention on Human Rights (1950).

What is the American Convention on Human and Peoples’ Rights (1969)?

A regional treaty supported by the Inter-American Court of Human Rights, aimed at protecting human rights in the Americas.

Why has Canada refrained from ratifying the American Convention on Human and Peoples’ Rights?

Concerns about sovereignty and being subjected to rulings by a foreign tribunal that may not prioritize national interests.

What is the primary political motivation for nations avoiding regional treaties?

The fear that international tribunals could infringe on domestic sovereignty and independence.

What is the argument of nationalists against regional tribunals?

They argue that sovereign nations know what is best for their people and should prioritize national interests without being subjected to foreign rulings.

What is the internationalist perspective on regional or international tribunals?

They believe such tribunals create alignment between states and are beneficial for fostering global cooperation and consistency in human rights protection.

How do developing countries benefit from regional human rights treaties?

Foreign pressure helps to advance policies that face domestic obstacles, promoting human rights protection despite internal resistance.

declarations- hard law or soft law

The UDHR is not legally binding but serves as a moral guide to human rights, creating a framework for future binding legal instruments. - itbwas also asopted by the UNGA

Declarations are considered soft law, as they provide guidelines and principles without legal enforcement.

example of hard law

treaties! internattionaly binding agreements postulatied by the vienna convention in article 2(1)

sotft laws - binding?

they are not binding as they dont provide legal enforcement measures

contracts are actually…?

HARD LAWW - binding - domestic forms tf treaties - forms of verbal treaty as copare dto international law than cant be of varbal form